In University of Texas Southwestern Medical Center v. Nassar, the U.S. Supreme Court has recently held that Title VII retaliation claims must be proven in accordance with a but-for causation standard. This but-for standard is different from the standard for status-based discrimination claims which requires an employee to only demonstrate that discrimination was a motive (as opposed to the motive). This but-for standard is a more stringent standard, which may be of benefit to employers in defending against retaliation claims.
As we all know, an employer’s potential liability under Title VII hinges, in part, on whether the alleged harasser is a co-worker or supervisor of the alleged victim. However, in some cases, the distinction between co-worker and supervisor can be unclear. Many presumed that if the alleged harasser oversaw the work of the alleged victim then that employee must be the alleged victim’s supervisor. The U.S. Supreme Court in Vance v. Ball has held that an employee is a supervisor for purposes of vicarious liability under Title VII when that employee is empowered by the employer to take tangible employment actions against the alleged victim. Tangible employment actions include hiring, firing, promotion, reassignment, or another decision/action causing a significant effect on benefits or employment status.
A recent decision issued in Ohio, Waldon v. Cincinnati Public Schools, No. 1:12-CV-00677 (S.D. Ohio Apr. 23, 2013), highlights the unfortunate circumstance when a state employment law contradicts a federal employment law. In that case, the employer (a school district) was obligated by Ohio law to perform a criminal background check on all current employees and was not permitted to employ anyone who committed any of the crimes specified by the law regardless of how long ago the crime occurred or the relation, if any, to the employee’s position. On this basis, the employer performed the background check and terminated the employment of 10 employees (9 of which were African American). Two of those employees sued alleging racial disparate impact in violation of Title VII. The employer sought to have the case dismissed on the basis that it had been following state law. Although the case remains pending, this decision demonstrates that following state law is not a defense to a claim that the employer violated Title VII as Title VII pre-empts the state law.