Vance & Nassar - Title VII Discrimination - "But-For Causation"

A couple cases came down from the U.S. Supreme Court this week that affect Title VII discrimination claims. Vance sets out the liability of an employer for the acts of supervisors and employees, and Nassar sets forth a heightened "but-for" causation standard by which Title VII retaliation claims are to be judged.

First, Vance v. Ball State University et al., changed the way a court is to determine whether an employer is liable for the acts of its employees.

The Supreme Court held that an employer is to be held strictly liable for the acts of a supervisor, that is, someone that has control over the terms and conditions of a worker's employment.

The employer may, however, assert an affirmative defense if: (1) the employer exercised reasonable care to prevent and correct any harassing behavior; and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.

As for the acts of a co-worker, an employer is only liable if it is negligent in the control of the working conditions.

Univ. of Texas Southwestern Medical Medical Center v. Nassar - In a 5-4 split, the Supreme Court held that Title VII retaliation claims must be proved according to a heightened "but-for" causation standard - not the lessened causation standard previously used under §2000e–2(m). This change may drastically affect claims made against an employer in that, the employee must show that, absent the protected category, the adverse employment action would not have been made. Significantly raising the bar from the previous standard that the protected category was "a factor".

For more on Vance and Nassar, click the links below.

Published in Blog


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