By Mike Snyder, Summer Associate, with Jean H. Bender

On June 24, the United States Supreme Court issued two decisions affecting claims filed under Title VII of the Civil Rights Act of 1964.  In University of Texas Southwestern Medical Center v. Nassar, the United States Supreme Court, in a 5-4 decision, held that a Title VII retaliation claim must be proven under a “but-for” causation standard rather than the less demanding “motivating factor.”   Therefore, while the motivating factor test is applied to status-based discrimination claims, an employee claiming retaliation must meet the higher burden of proving the employer would not have taken the challenged action but-for the employee’s protected action.

While the Court’s decision was largely based on its analysis of statutory intent and interpretation, the Court highlighted that the number of retaliation claims filed with the Equal Employment Opportunity Commission (EEOC) has doubled in the last 15 years.  Further, the Court noted that retaliation claims now outnumber every other Title VII claim other than race discrimination.  The Court observed that using a looser standard—such as the motivating factor test—could contribute to the filing of frivolous retaliation claims.  While the Nasser decision cannot stop the filing of frivolous claims, it will at least make it easier for an employer to defend itself.

In another close decision, the Court narrowed the definition of a “supervisor” under Title VII for purposes of assessing liability for unlawful harassment. In Vance v. Ball State University, the Court held that a “supervisor” is someone empowered by the employer to take “tangible employment actions” against an employee. The Court defined “tangible employment actions” as those actions which can significantly change the status of an employee, such as “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” By comparison, someone who merely directs the day-to-day activities of an employee does not fall under the definition of a supervisor. This clarification is important because, in cases involving harassment by a co-worker, employers can be held liable only if the employer was negligent in failing to stop the conduct. If a supervisor is involved, however, the employer can be held liable in the absence of employer negligence where “tangible employment actions” are taken against the employee.

The Vance decision reinforces how important it is for employers to have carefully drafted, well publicized policies prohibiting discrimination and harassment.  Employers should review these policies and verify that the policies include an appropriate internal complaint procedure.  We also recommend annually training all employees on the workplace harassment policies.  This training will become more important following the Vance decision as more harassment claims will be analyzed under the negligence standard and therefore employers will need to demonstrate that they actively sought to eliminate workplace harassment by encouraging timely reporting of prohibited activity.

Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the State’s largest law firms.  The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas.  For more information about Davenport Evans, visit or call 605-336-2880.