California Employment Law Notes (July 2013)

Employee Must Prove That Illegal Retaliation Was The "But For" Cause Of Adverse Job Action Under Title VII University of Tex. S.W. Med. Ctr. v. Nassar, 570 U.S. ___, 2013 WL 3155234 (2013)

The United States Supreme Court ruled that a plaintiff asserting retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII") must prove that illegal retaliation was the "but for" cause of the employer's adverse action. In a five-to-four decision, the Court rejected the lower court's decision applying a less burdensome standard, which required merely that a plaintiff show retaliation was one "motivating factor," among others, resulting in the adverse job action. Dr. Naiel Nassar, a physician of Middle Eastern descent, complained that one of his superiors, Dr. Beth Levine, discriminated against him based on his religion and ethnic heritage. Nassar, who worked as a staff physician and assistant professor at the University of Texas Southwestern Medical Center ("UTSW"), attempted to resolve the issue by arranging to work at the hospital without being a UTSW faculty member under Levine's supervision. After Nassar resigned from UTSW, citing Levine's discrimination and harassment as his primary motivation for the transfer, the hospital withdrew its offer of employment at the request of Levine's supervisor. Nassar filed suit against UTSW, alleging constructive discharge and retaliation under Title VII. The issue on appeal was whether Nassar had to prove that the alleged retaliation was the "but for" cause of the termination or merely one of several "motivating factors" in the decision. In holding that a plaintiff alleging a Title VII retaliation claim must prove that the retaliation was the "but for" cause of the employer's adverse employment decision, the Supreme Court clarified that the less burdensome "motivating factor" test applies only to status-based discrimination under Title VII (discrimination on the basis of race, color, religion, sex, national origin, etc.) and not retaliation claims such as the one Nassar asserted in this case.

Supreme Court Narrows Definition Of "Supervisor" Under Title VII Vance v. Ball State Univ., 570 U.S. ___, 2013 WL 3155228 (2013)

The United States Supreme Court held that an employee is a "supervisor" for purposes of vicarious employer liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against an employee. Following alleged harassment by a superior, Maetta Vance, a Ball State University ("BSU") dining services employee, filed suit alleging hostile work environment in violation of Title VII. Vance asserted vicarious liability on the part of BSU based on the actions of another BSU employee named Saundra Davis. BSU moved for summary judgment, arguing that because Davis was not Vance's supervisor, it could not be held vicariously liable for her actions. The issue on appeal was whether a "supervisor" must have the power to take tangible employment actions or whether a "supervisor" need only direct the day-to-day activities of an employee – as Vance alleged Davis did. Affirming the decision of the Court of Appeals for the Seventh Circuit, the Supreme Court held that a "supervisor" is an individual who has authority to take tangible employment actions, "such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits."

This decision is significant because an employer can be held strictly liable for its supervisors'...