Bringing together practitioners on all sides of issues in arbitration, courts and state and federal agencies

Supreme Court Watch: Supreme Court Rulings Tilt in Favor of Employers As Term Ends

In a pair of decisions on Monday, June 24, the Supreme Court tightened the standards by which employees can bring claims under Title VII of the Civil Rights Act of 1964. 

In University of Texas Southwestern Medical Center v. Nassar, the Court required plaintiffs, when bringing retaliation claims under Title VII to prove “but for” causation, rejecting the more lenient “motivating factor” standard of proof.  What this means in lay person’s terms can be explained using a little math.  Let’s say the employee claims she was fired in retaliation for complaining about sex discrimination, and the employer defends on that ground that she was fired for violating its attendance policy, as she was frequently absent and late to work.  Under a “motivating factor” standard of proof, the employee can prevail if retaliation was “a motivating factor” meaning it could have been 40% responsible for the decision—it need not be the primary reason.  In contrast, applying the “but for” standard of proof, the employee can only prevail if she would not have been fired “but for” the retaliatory motive, which has to be at least 51% of the reason—the primary reason. 

In Vance v. Ball State University, the Court clarified the definition of “supervisor” under Title VII, rejecting the broader definition urged by the plaintiff and the Equal Employment Opportunity Commission, and instead adopting a narrow definition.  The Court held that a “supervisor” is one who can take a “tangible employment action” towards an employee, such as hiring, firing, promoting, and disciplining.  It rejected the EEOC’s expansive view which of a supervisor as one who has the ability to direct another employee’s work.  Who is a supervisor is an important issue in proving sexual harassment under Title VII.  Employers are vicariously liable for harassment engaged in by supervisors (because they are their “agents) even if the employer has no knowledge of the harassment (i.e., even if the employee has not complained).  By contrast, employers are not liable for harassment engaged in by coworkers unless they are on notice (i.e., unless the employee made a complaint).   

 A decision in a class action case last week will also benefit employers.  In American Express Co. v. Italian Colors Restaurant, the Court ruled that a court cannot invalidate a class action waiver on the ground that the plaintiff’s cost of individually arbitrating the federal claim exceeds the potential recovery.  This is the latest in a series of Supreme Court decisions upholding waivers of class actions in arbitration agreements.   

Labor & Employment Law Committees

  • Employment Law Committee
  • Labor & Employment Communications Committee
    This committee publishes information relevant to the labor & employment bar. If you are interested in an editorial position or publishing an article, please contact us.

    Contact Information

    Brian J MacDonough

    Shilepsky Hartley Michon Robb

    (617) 4472809

    Robert Alan Fisher

    Foley Hoag LLP

    (617) 832-1000

  • Labor & Employment Education Committee
    Help develop relevant and innovative educational sessions led by a diverse group of talented speakers who cover labor and employment law issues.

    Contact Information

    Sherley E. Rodriguez

    Suffolk University Law School

    (617) 573-8000

    Christopher Feudo

    Foley Hoag LLP

    (617) 832-1000

    Matthew C. Moschella

    Sherin and Lodgen LLP

    (617) 646-2245

    James S. Weliky

    Messing, Rudavsky & Weliky, PC

    (617) 742-0004

    William E. Hannum

    Schwartz Hannum PC

    (978) 623-0900

    Natacha Thomas

    (617) 273-2326

  • Labor & Employment Public Policy Committee
    The BBA is very active in legislative and regulatory changes. Labor & employment attorneys are often asked to lend their expertise.

    Contact Information

    Katherine J. Michon

    Shilepsky Hartley Michon Robb

    (617) 723-8000

    Rachel Reingold Mandel

    Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

    (617) 994-5700

  • Labor & Employment Public Service Committee
    This committee focuses on practice are specific pro bono trainings and brown bag programming.

    Contact Information

    Nicole Corvini

    Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

    (617) 994-5700

  • Labor Law Committee
    This committee is composed of lawyers for management, unions and individuals. It focuses on traditional labor issues in the private and public sector, and is responsible for monitoring legal developments in the area of labor law and presenting educational programs in this area.
  • Non-Compete & Trade Secrets
    The Non-Compete &Trade Secrets Committee works to ensure that attorneys are kept apprised of developments in this constantly evolving area of business and employment law, whether in the form of judicial precedent, legislative mandate or business practice.

    Contact Information

    Christopher J. Perry

    (617) 721-4345

    Jennifer Catlin Davis

  • Steering Committee
    The leadership committee of the Section organizes programs and discusses policy. To inquire about opportunities, please contact the Section Co-Chairs.
  • Wage & Hour Committee
    This committee keeps the community up to date on wage and hour developments and trends.