High Court Decisions Focus on Harassment, Retaliation, in Connecticut Law Tribune

David S. Poppick, a Member of the Firm in the Labor and Employment, Litigation, and Health Care and Life Sciences practices, in the firm's Stamford and New York offices, wrote an article titled "High Court Decisions Focus on Harassment, Retaliation."

Following is an excerpt:

In two 5-4 decisions under Title VII of the Civil Rights Act of 1964, the U.S. Supreme Court has defined new standards for who qualifies as a "supervisor" in employment workplace harassment cases, thereby changing the standard now applied in the Second Circuit. At the same time, the Court has increased an employee's burden of proof for employment retaliation lawsuits.

In Vance v. Ball State University, No. 11-556 (June 24, 2013), in an opinion written by Justice Samuel Alito, the Court ruled that an employer is strictly liable for harassment suffered by an employee when the harassment is caused by a supervisor who is empowered to take tangible employment actions, and the harassment culminates in a tangible employment action, such as hiring, firing, demoting, promoting, transferring or disciplining an employee. If the harassing employee is the victim's co-worker, and not a supervisor, then the employer is liable only if it was negligent for not controlling the harassing behavior, or, in other words, if it knew or should have known of the harassment and failed to take corrective action. If no tangible employment action is taken against the victim, the employer may escape liability if it establishes that: (1) it exercised reasonable care to prevent and correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.

In University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (June 24, 2013), in an opinion by Justice Anthony Kennedy, the Supreme Court ruled that an employment discrimination lawsuit based on retaliation must be proved by a heavier burden of proof — the "but for" causation standard — and not by the lesser burden of proof — the "motivating" factor standard — that is used for other Title VII claims based on the employee's race, color, religion, sex, or national origin.

The attached file is reprinted with permission from the July 22, 2013 edition of CONNECTICUT LAW TRIBUNE © 2013 ALM Media Properties, LLC. All rights reserved.