Alert: Supreme Court rules on harassment, discrimination, and affirmative action

The U.S. Supreme Court issued rulings on harassment, discrimination, and affirmative action yesterday.

In the harassment case, the Court said an individual is considered a supervisor under Title VII of the Civil Rights Act only if he or she has the authority to make tangible employment decisions about the victim, such as hiring, firing, promoting, reassigning to significantly different responsibilities, or causing significant changes in benefits. Just directing the complaining employee’s work tasks isn’t enough. In this case, a catering specialist who allegedly intimidated a catering assistant on the basis of her race clearly wasn’t a supervisor because her authority was limited to telling the assistant what to do (Vance v. Ball State University, US, June 24, 2013).

The Court’s ruling means it will usually be pretty clear who is a supervisor. Also, the universe of workers who are considered supervisors for purposes of Title VII liability is now much narrower than what the U.S. Equal Employment Opportunity Commission (EEOC) had thought it should be. This is important because under Title VII, if a supervisor harasses someone as part of a hostile work environment but doesn’t take any tangible employment action, the employer is still automatically liable unless it can show it had reasonable procedures in place to prevent and correct harassment, and the employee unreasonably failed to take advantage of those procedures. But if the harasser isn’t a supervisor, then the employer is only liable if it knew or should have known of the harassment. For more information, see our Legal Guide, “At a Glance: Workplace Harassment” (6257). Vigilant offers non-harassment training for supervisors, as well as employee briefings on the topic; contact your Vigilant staff representative to schedule sessions at your location.

In the discrimination case, the Court made it harder for employees to prove retaliation under Title VII. When an employee complains of illegal discrimination and then experiences a negative employment action, the employee may claim the employer retaliated for the complaint. The Court said to prove retaliation under Title VII, the employee must show that the employer had only one reason for the negative employment action: to punish the employee for opposing or complaining of discrimination on the basis of race, color, religion, sex, or national origin. If the employer had a mixed motive and would have taken the same action anyway for legitimate reasons, then it isn’t liable for retaliation. In this case, the chair of a university medical department told a hospital not to hire a doctor who had quit his university job after complaining of discrimination, but part of the chair’s reason for doing so was that the hospital had agreed to employ only university-affiliated doctors on staff (University of Texas Southwestern Medical Center v. Nassar, US, June 24, 2013). See our Legal Guide, “Retaliation Claims: How to Avoid Them” (1308).

The Court also decided an affirmative action case, requiring a university that voluntarily used race as a factor in student admissions, to provide compelling reasons for continuing to do so (Fisher v. University of Texas at Austin, US, June 24, 2013). Employers who have affirmative action obligations as federal contractors may wonder whether this decision affects them. Technically, the answer is no. The reason is that affirmative action is mandatory for employers with covered federal contracts. Executive Order 11246 requires them to track the race/ethnicity and gender of applicants and employees, cast a wide net to find qualified candidates, and monitor their personnel activities to ensure nondiscrimination. However, the Court’s approach is consistent with modern-day affirmative action enforcement by the Office of Federal Contract Compliance Programs (OFCCP). Interestingly, if a federal contractor were to admit using race/ethnicity or gender to make employment decisions, even for a benign affirmative action purpose, the OFCCP today would likely find that to be illegal discrimination. These days, the OFCCP is focused on providing equal employment opportunities and preventing and correcting discrimination. Questions? Contact your Vigilant affirmative action representative.

Or, if you you would like to learn more about how Vigilant can help you with these employment issues and more, visit our website.