Posted 07-08-2013

The final week of June is usually busy at the U.S. Supreme Court, as the justices hurry to finish their opinions before July 4. That last-minute rush was particularly newsworthy for employers this year, as the Court handed down four major decisions with far-reaching impact. Here’s a capsule version of each:

1.  Vance v. Ball State University: The justices surprised many legal experts (including us!) by rejecting the position taken by the EEOC and three federal appeals courts and instead adopting a very narrow definition of who is a “supervisor” under federal harassment law. Why is that important? If the harasser is a supervisor, the employer is automatically liable unless it can prove that it had an effective anti-harassment policy in place, and that the victim unreasonably failed to take advantage of that policy (for example, by not using the reporting procedures outlined in the policy). By contrast, employers are liable for co-worker harassment only if the employee can prove that the employer was negligent in either discovering or remedying the offending behavior. Under the Vance ruling, a supervisor is someone with the power to take “tangible employment actions” (like hiring, firing, etc.) against the victim; someone who merely directs the day-to-day activities of a worker does not count.

2.  University of Texas Southwestern Medical Center v. Nassar: The Court also voted to increase the burden of proof on employees claiming retaliation. Employees can prove illegal discrimination by showing that discrimination was a motivating factor in the challenged decision (hiring, pay rate, discipline, firing, etc.) In Nassar, the Court held retaliation claims require employees to prove that the retaliation was not just a motivating factor, but the determinative factor for the decision.

3. United States v. Windsor: The Supremes declared unconstitutional Section 3 of the Defense of Marriage Act, which had barred federal recognition of same-sex marriages. More than 1,000 federal laws deal with spousal rights, including the employment law alphabet soup of COBRA, ERISA, and FMLA, not to mention Social Security and the Internal Revenue Code, which now must be made available to all married couples, no matter their gender.

4. Hollingsworth v. Perry: The Court also threw out an appeal from a lower court ruling which held California’s Proposition 8, which stripped same-sex couples of the right to marry, unconstitutional. Marriage equality is once again the law in California.

What this means to you:
These four cases illustrate the importance of the Four Key Management Concepts we teach in Managing Within the Law:

  1. Be consistent. The Supreme Court says treat all married couples the same.
  2. Have a legitimate business reason. The Supreme Court says that if you can prove that you had a legitimate business reason for an employment decision, it is not illegal retaliation.
  3. Document events. The Supreme Court says that employers can limit liability for illegal harassment by clearly designating who is a supervisor, and taking prompt corrective action in all cases.
  4. Call the experts. As an E-news reader, you know how important it is to stay abreast of employment law developments. Make sure your managers and supervisors have the critical information they need to manage legally and effectively.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.