The Edmond Sun

July 1, 2013

Supreme Court settles 2 employment cases

James Coburn
The Edmond Sun

EDMOND — Two employment law cases settled by the United States Supreme Court will clarify the law in employment discrimination, said Andy Lester, an Edmond attorney.

This week the Supreme Court issued a joint 5-4 decision in the case, University of Tex. Southwestern Medical Center v. Nassar, as well as Vance v. Ball State University. Lester said that Vance v. Ball State University defines a supervisor.

“The supervisor has to be a supervisor where the supervisor’s acts are the acts of the employer,” said Lester, who practices complex appellate litigation in areas of business law, state and government law.

“You don’t have to go to anything else to prove it was the employer doing the bad act, because it’s the supervisor, ” Lester said.

The supervisor has to have the power to take tangible employment action against the victim, Lester said. Title 7 claims of the Civil Rights Act are defined as not lodged against the harasser, but are lodged against the employer, Lester said.

“Where the harasser is not a supervisor, it’s a little more difficult to prove that the employer engaged in discrimination,” Lester said.

 The statute speaks to the employer, that he or she may not discriminate on the basis of race, color, sex or national origin, Lester said. Harassment constitutes discrimination when the harassment is sufficiently severe or pervasive in altering the terms of employment, Lester said.

“When somebody takes a job, they usually don’t take a job to be harassed on the basis of their sex,” Lester said.

In the matter of an harassment lawsuit based on actions of employees, there must be something where the employer knew about it or should have known about it without taking action or adopted bad actions, Lester said. This can happen if an employee files a report with a supervisor which is then ignored, he said.

“Then it is an employer action and not simply a coworker’s,” Lester explained.

In the case of the University of Tex. Southwestern Medical Center v. Naiel Nassar, court records note “a physician of Middle Eastern descent who was both a university faculty member and a hospital staff physician, claimed that Dr. Levine, one of his supervisors at the university, was biased against him on account of his religion and ethnic heritage.”

In delivering the majority opinion of the court, Associate Justice Anthony M. Kennedy wrote, “Title VII defines the term ‘unlawful employment practice’ as discrimination on the basis of any of seven prohibited criteria: race, color, religion, sex, national origin, opposition to employment discrimination, and submitting or supporting a complaint about employment discrimination.”

Kennedy continued, “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 anti-discrimination 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.”