October 2013

A slight reprieve

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Recent Supreme Court rulings have made it more difficult for employers to be liable for harassment

by Jason C. Kim and Judith Kong
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In June 2013, the Supreme Court issued two decisions that make it significantly more difficult for plaintiffs to pursue federal harassment and retaliation claims against employers under Title VII of the Civil Rights Act of 1964.

In Vance v. Ball State University, the court held an employee is considered a "supervisor" for purposes of determining an employer's vicarious liability for workplace harassment only if the employee is empowered by the employer to take tangible employment actions against the alleged victim (defined as hiring, firing, failing to promote, reassigning with "significantly different responsibilities" or causing a "significant change in benefits").

In University of Texas Southwestern Medical Center v. Nassar, the court held claims alleging an employer retaliated against an employee for complaining about or opposing discrimination under Title VII must be analyzed under a "but-for" causation standard, meaning the employee must prove "but-for" his or her opposition to an employer's alleged discriminatory conduct, the retaliatory adverse employment action would not have occurred.


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