Two overlooked cases give employers more options.
Although it was no doubt the most dramatic, the U.S. Supreme Court’s June 26 decision regarding same-sex marriage was not the only one that’s expected to have far-reaching effects on employee relations. Two largely overlooked opinions—issued by the court a week before the Defense of Marriage Act decision—provide more certainty and better options to employers who are faced with a workplace complaint.
Case 1: Issues of Retaliation
In the first case, a medical school professor complained that his supervisor overscrutinized his work because he was Muslim and of Middle Eastern descent. The university offered him the opportunity to transfer to a position at an affiliated hospital, but a third professor objected to the transfer because it violated the university’s standard employment contract. Although that was apparently true, the professor who thwarted the transfer also was openly upset by the first professor’s discrimination claims. In short, it looked like he prevented the transfer in retaliation for the discrimination complaint.
Under Title VII—the federal law that prohibits most employers from discriminating on the basis of things like race, sex, religion, and national origin—it is also unlawful to retaliate against a person who complains about discrimination on any of those grounds. What the court had to decide was whether the university violated the law if it had more than one reason for reneging on the transfer offer—one valid reason and one retaliatory one. Different federal courts (as well as the EEOC) have long reached differing conclusions to that question.
The Supreme Court took the case in order to settle the issue once and for all. Its conclusion? In order to prove retaliation, an employee must show that the employer’s sole reason for an adverse employment action was retaliatory. In other words, because the university had a valid, nonretaliatory reason for withdrawing the transfer offer, it did not violate the law even if its action was retaliatory in part.
Prior to this decision from the court, employers were frequently put in the difficult position of choosing between retaining problem employees and terminating them at the risk of being sued for retaliation. Although that concern will never go away completely, employers should now feel a little freer to terminate such employees for legitimate reasons rather than being paralyzed by the fear of a retaliation lawsuit.
Case 2: Definition of Supervisor
In the second case, the court had to decide what level of authority over others an employee must have to be considered a “supervisor” under Title VII. This is important because when a supervisor engages in unlawful harassment, the employer is automatically liable for that supervisor’s actions. If the harassment is committed by a coworker, on the other hand, the employer may avoid liability by taking reasonable actions to respond to and resolve an employee’s harassment complaint.
So the question for the court was: Who is a supervisor? Some lower courts said that to be considered a supervisor, the alleged harasser must have had direct authority over such things as whether to “hire, fire, demote, promote, transfer or discipline” the complaining employee. (The federal court with jurisdiction over Missouri took this position.)
Other courts applied a much broader definition of “supervisor,” stating that they need only have the authority to direct the complaining employee’s daily activities. (The federal court with jurisdiction over Kansas took this approach.)
The Supreme Court rejected the broader definition, choosing instead to require a showing that the alleged harasser had the power to directly affect the complaining employee’s terms and conditions of employment.
This is a substantial win for employers in jurisdictions—like Kansas—that previously applied the broader definition. The result is that more employers should be able to assert a defense to harassment complaints when an alleged harasser had some oversight over the complaining employee but didn’t have true supervisory authority over them.
Julie Athey, JD, is an HR consultant and compliance leader for The Miller Group, a full-service brokerage firm offering commercial insurance, employee benefits, HR consulting, surety bonds and private risk management. (816) 308-4552 // email@example.com // www.millercares.com