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News and Case Alert
Issue #5-7
Special EEO Edition
TABLE OF CONTENTS
NEW RELEASES!
A Guide to EEO, 2013
A Guide to FLRA, 2013
A Guide to MSPB, 2013
Federal Sector EEO Update 2004-2013
The First Four Weeks
A Guide to the Whistleblower Protection Act
Defining "Supervisor" For Purposes of Vicarious Liability
"But-For" Is The Proper Standard of Causation for Title VII Retaliation Claims
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MSPB Case Summaries (2013)



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A Guide to Federal Sector Equal Employment Law and Practice (2013)



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Dewey's FREE MONTHLY "News and Case Alert" Email keeps you up-to-date with the latest federal sector employment and labor laws, cases and news.

 

 

On Monday, the Supreme Court issued two anticipated opinions in the world of EEO law. Vance v. Ball State University, Ginsburg dissenting, answered who is a supervisor for purposes of vicarious liability, and University of Texas Southwestern Medical Center v. Nassar, Ginsburg dissenting in that opinion as well, set forth the proper standard of proof to be applied in claims of retaliation.

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Defining "Supervisor" For Purposes of Vicarious Liability

Vance v. Ball State University, No. 11-556 (2013)

by Natania Davis

Completing its work in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998), where the US Supreme Court concluded that an employer may be held vicariously liable for a supervisor's harassment of a subordinate employee, the Vance Court held that the term "supervisor", for purposes of vicarious liability under Title VII, is limited to those individuals who are empowered to take tangible employment actions against the victim.

Vance urged the Court to adopt EEO Guidance defining the term "supervisor." Noted by the Court as a "study in ambiguity," EEOC Guidance "takes the position that an employee, in order to be classified as a supervisor, must wield authority 'of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment.'"

Rejecting the EEOC's broader definition of the term, the Court noted that neither the Ellerth decision or Faragher suggested that there should be two categories of supervisors, those who have authority to make tangible employment decisions and "those who, although lacking this power, nevertheless have the ability to direct a co-worker's labor to some ill-defined degree." While slamming EEO Guidance, the Court also expounded on the phrase "tangible employment actions":

We hold that an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, supra, at 761. We reject the nebulous definition of a "supervisor" advocated in the EEOC Guidance [4] and substantially adopted by several courts of appeals. Petitioner's reliance on colloquial uses of the term "supervisor" is misplaced, and her contention that our cases require the EEOC's abstract definition is simply wrong.

[4] The United States urges us to defer to the EEOC Guidance....But to do so would be proper only if the EEOC Guidance has the power to persuade, which "depend[s] upon the throughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements."... we do not find the EEOC Guidance persuasive.

Because the word "supervisor" has "varying meanings both in colloquial usage and in the law'", the majority noted that a broader interpretation of the term would "frustrate judges and confound jurors."

The interpretation of the concept of supervisor that we adopt today is one that can be readily applied. In a great many cases, it will be known even before litigation is commenced whether an alleged harasser was a supervisor, and in others, the alleged harasser's status will become clear to both sides after discovery. And once this is known, the parties will be in a position to assess the strength of a case and to explore the possibility of resolving the dispute. Where this does not occur, supervisor status will generally be capable of resolution at summary judgment.

...

[T]his approach will not leave employees unprotected against harassment by co-workers who possess the authority to inflict psychological injury by assigning unpleasant tasks or by altering the work environment in objectionable ways. In such cases, the victims will be able to prevail simply by showing that the employer was negligent in permitting this harassment to occur...

This was a deeply divided opinion with Justice Alito joined by Roberts, Scalia, Kennedy and Thomas, delivering the opinion of the Court, and Justice Ginsburg, joined by Breyer, Sotomayor, and Kagan, dissenting. Justice Thomas also filed a concurring opinion. Ginsburg, et al., supported EEOC Guidance on the matter, namely that those with the "authority to direct an employee's daily activities" hold supervisory status under Title VII.

Given that the majority opinion is the law, at least for the foreseeable future, we will not fully brief Ginsburg's dissent or Thomas' concurrence here. Instead, we invite our readers to read the opinion in its entirety at http://www.supremecourt.gov/opinions/12pdf/11-556_11o2.pdf

For more on vicarious liability, see A Guide to Federal Sector EEO Law and Practice by Hadley, EEO Update by Goodfriend, Vitaro and Gilbert and EEO and the Federal Supervisor by Corum.

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Dewey's recently released EEO Titles!

A Guide to Federal Sector Equal Employment Law and Practice (2013)

Updated annually, the EEO Guide offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners.

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Consolidated Federal Sector EEO Update 2004-2013

Updated annually, this comprehensive text digests notable Commission and federal court employment discrimination cases from 2003 through 2012 and reviews EEO laws, regulations, guidance, and recent trends, Arranged by subject matter areas of employment discrimination jurisprudence and further categorized alphabetically for ease of use.

deweypub.com/store/13CEUP.html

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"But-For" Is The Proper Standard of Causation for Title VII Retaliation Claims

University of Texas Southwestern
Medical Center v. Nassar
, No. 12-484 (2013)

by Natania Davis

On Monday, the US Supreme Court held that "but for" is the proper standard of causation for Title VII retaliation claims, requiring proof that the retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.

As an initial matter and for purposes of the discussion, the Court distinguished between two categories of wrongful employer conduct prohibited by Title VII:

The first type is called, for purposes of this opinion, status-based discrimination. The term is used here to refer to basic workplace protection such as prohibitions against employer discrimination on the basis of race, color, religion, sex, or national origin, in hiring, firing, salary structure, promotion and the like. See §2000e-2(a). The second type of conduct is employer retaliation on account of an employee's having opposed, complained of, or sought remedies for, unlawful workplacediscrimination. See §2000e-3(a).

Central to the Court's reasoning is the statutory language contained in 42 USC 2000e-3(a) (retaliation) and 42 USC 2000e-2(m) (status-based discrimination). Section 2000e-3(a) prohibits an employer from taking discriminatory adverse employment actions against any employee "because" he has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing." Section 2000e-3(m) provides that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." The operative phrase with respect to status-based discrimination, according to the Court, is "motivating factor", allowing an employeer to show that it would still have taken the same employment action and saving it from monetary damages.

Also relevant to the Court's analysis was its opinion in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), where the Court examined the "because of...age" phrase contained in the ADEA at 29 USC 623(a)(1) and concluded that the ADEA requires proof that the prohibited criterion was the but-for cause of the prohibited conduct. Employing reasoning similar to that in Gross and Congressional history, the Court noted that "given the lack of any meaninful difference between the text in this statute and the one in Gross, the proper conclusion here, as in Gross, is that Title VII relation claims reuire proof that the desire to retaliate was the but-for cause of the challenged employment action."

The Court summed up its analysis:

Title VII defines the term "unlawful employment practice" as discrimination on the basis of any of seven prohibited criteria: race, color, religion, sex, nationalorigin, opposition to employment discrimination, and submitting or supporting a complaint about employment discrimination. The text of §2000e-2(m) mentions just the first five of these factors, the status-based ones; and it omits the final two, which deal with retaliation. When it added §2000e-2(m) to Title VII in 1991, Congress inserted it within the section of the statute that deals only with those same five criteria, not the section that deals with retaliation claims or one of the sections that apply to all claims of unlawful employment practices. And while the Court has inferred a congressional intent to prohibit retaliation when confronted with broadly worded antidiscrimination statutes, Title VII's detailed structure makes that inference inappropriate here. Based on these textual and structural indications, the Court now concludes as follows: Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e-2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.

Another divided opinion, Justice Kennedy, joined by Roberts, Scalia, Thomas and Alito, delivered the opinion of the Court, with Justice Ginsburg, joined by Breyer, Sotomayor and Kagan, dissenting. In the interest of brevity, we will not discuss the dissent here, but readers are encouraged to read the full opinion at http://www.supremecourt.gov/opinions/12pdf/12-484_o759.pdf.

For more on causation, bases of discrimination and retaliation, see Best of the Commission by Hadley, Litigating Federal Sector Employment and Labor Law Disputes by Fowler and Kaplan and Surviving EEO Complaints by Tuck.

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