Nassar and Vance : Instant analysis

In two 5-4 decisions, the United States Supreme Court lessened protections for employees in the workplace today in the Vance and Nassar cases. My initial impression is the Nassar decision will have  a bigger impact on employees in Nebraska and Iowa and will probably have a bigger impact nationwide as well.


In Nassar the Supreme Court changed the standard for causation in a Title VII retaliation case from a motivating factor to but-for causation. Motivating factor is described as one of several causes where as but for causation means because of or even a sole cause. “But for” is a harder factor for an employee to prove than a motivating factor. In the 5-4 decision, Justice Alito pointed to the burden imposed on employers from the increase in retaliation cases filed with the EEOC. Alito believes that motivating factor in retaliation cases leads to  frivolous claims. Specifically he was worried that employees who knew they were going to get fired would file discrimination complaints in order to either prevent from getting fired or to set themselves up for a wrongful termination case.

In her dissent, Justice Ginsburg stated that Alito didn’t give federal trial court judges enough credit for sniffing out bogus retaliation claims on summary judgment. I agree. I also think Justice Alito doesn’t give attorneys — both management and employee side attorneys — enough credit in screening out bogus claims. As an employee attorney I am going to commit a substantial amount of time and money to a wrongful termination claim, so I am going to screen my cases. This is especially true in the area of Title VII where I can get stung for fees and costs both through the court rules and possibly under statute if I bring a weak case.

I am going to be doubly careful if I speak with a client who claims to have been fired right after turning in a discrimination claim. I assume human resources officers either know the law and/or consult with competent counsel before before they decide to fire somebody. I assume that management knows that firing someone soon after engaging in protected activity creates an inference of wrongful motive. I also assume that management will be able to prove to a court that they had a legitimate reason to fire an employee who recently engaged in protected activity.  Unless an employee can give me a good reason to doubt that assumption, I and most other plaintiff’s lawyers will decline that case.

Part of the expense of defending retaliation claims stems from responding to administrative filings with the EEOC and state and local fair employment agencies. The decision in Nassar does nothing to stop poor employees who were fired for good reason from filing claims with fair employment agencies. However as a result of today’s decision, good employees with legitimate cases, like Dr. Naiel Nassar, will have a more difficult time vindicating their rights in court.

But employee advocates can still bring retaliation cases under state fair employment statutes where causation standards may be less exacting for employees. Under current Nebraska law, proximate cause need not be the sole cause of an act in order to hold a defendant liable. However state courts tend to follow federal courts in their interpretation of fair employment law. State courts could very well carve out a fair employment exception to state law retaliation case under the reasoning of Nasser. Also courts could apply Nasser to raise standards for proximate cause for all civil plaintiffs. Employee advocates will need to proceed with caution on state law retaliation claims post-Nasser.


Vance clears up a split among Federal Courts of Appeal as to the definition of a supervisor under Title VII. The court agreed with the 1st and 8th Circuits that a supervisor is someone with authority to make tangible employment decisions such as hiring and firing. The court rejected the majority view that a supervisor was someone with the mere power to direct an employee’s work. Vance was arose out of a hostile environment claim under Title VII and the narrow holding was that an employer can not be held vicariously liable for harassment committed by someone who merely directs the work of another employee. As a result employees are now essentially required to report harassment to upper management and human resources in order to win a hostile environment claim under Title VII. Vance doesn’t change the law in Nebraska or Iowa or anywhere else in the 8th or 1st circuit. But again state courts will likely give deference to the decision. If employee advocates are advising employees pre-termination, it would probably be wise to make sure employees are able to prove their harassment case under a Vance standard.

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