U.S. Supreme Court Deals Two Blows To Employees

The U.S. Supreme Court issued two recent opinions that negatively affect the rights of every employee in Minnesota and across the country.

In University of Texas Southwestern Medical Center v. Nassar, the issue before the court was the standard a plaintiff needs to meet in order to prove a retaliation claim under Title VII. As you may recall, Title VII is the federal law that, among other things, prohibits discrimination and retaliation in employment based on a person's race, color, religion, sex, or national origin. The court was presented with the question of what standard a plaintiff had to prove in order to succeed on a claim of retaliation. A claim of retaliation typically exists when an employee complains of discrimination in the workplace and then suffers some type of adverse employment action (termination, demotion, cut in pay, etc.) as a result.

As recognized in the SCOTUS Blog, Congress and the court have had a unique "back-and-forth" about what a plaintiff has to prove to succeed on a claim brought under Title VII. Like many employment law statutes, Congress approved Title VII and the Supreme Court then began narrowly interpreting it in a series of decisions. Specifically, the court had previously held that a plaintiff need to prove that "but for" their race, color, religion, etc., they would not have suffered the adverse employment action at issue. This meant that even if a plaintiff could prove an employer's decision was based in part on an improper motive such as sex, they could still lose if the jury believed the employer would have fired them anyway.

In 1991, Congress acted and overturned those decisions. Specifically, the court adopted a "motivating factor" test that, in essence, allowed the plaintiff to prevail if she could show an improper motive was one of many "motivating factors" in the adverse employment decision.

The issue before the court in Nasser was whether the motivating factor test applied to retaliation claims. The court held that it does not. Justice Alito, writing for the 5-4 majority, stated that retaliation claims are to be decided using the "but for" analysis. Justice Ginsberg, who read her dissent in court, specifically called on Congress to overturn this decision because the court has, on numerous occasions, held that retaliation is simply another form of discrimination.

In sum, this decision makes it more difficult for plaintiffs to prove a claim of retaliation under federal law. Employees in Minnesota still may bring a retaliation claim under the Minnesota Human Rights Act, which applies the motivating factor test.

The second case is Vance v. Ball State University. In that case, the court further defined who constitutes a "supervisor" in claims for workplace harassment. Specifically, the court held that a supervisor is limited to someone authorized to take “tangible employment actions” like hiring, firing, promoting, demoting or reassigning employees to significantly different responsibilities. The court went on to hold that “the ability to direct another employee’s tasks is simply not sufficient” to call someone a supervisor. Limiting who constitutes a supervisor is significant because the burden to prove harassment against a supervisor is less burdensome than against a co-worker.

In the big picture, these cases materially limit employees' rights in the workplace.

What Constitutes A "Hostile Work Environment?"

When people call and ask for me to take their case, they often claim they have been subjected to a "hostile work environment."  We often hear the term used to describe situations where someone is being subjected to sexual harassment.  Others believe that any time a boss or coworker have it in for us and take actions we think are meant to harm us at work that we are being subjected to a hostile work environment.  However, a claim for a "hostile work environment" is not limited to situations involving sex harassment, but it does not include every negative or hurtful action taken against us in the workplace.

Like all forms of illegal workplace discrimination, a claim for a hostile work environment is limited to those situations where the hostile environment is based upon our membership in a "protected class," i.e. our gender, race, age, disability, national origin, religious beliefs, and here in Minnesota, your sexual orientation, among others.  Thus, in order to succeed on your claim, you must show that the hostile environment you are experiencing is based on your membership in a protected class.

The Minnesota Supreme Court recently clarified what constitutes a hostile work environment in the case of LaMont v. ISD # 728.  Carol LaMont was a custodian at the Elk River, MN high school.  She reported to supervisor Doug Miner.  According to the opinion, Miner made several comments to his employees and co-workers that indicated his negative view of women in the workplace.  These comments included that he did not want any women on his crew, telling LaMont "I have no intention of ever asking you anything," describing a coworker's wife as "not bad," and stating to Miner that "[w]omen have their place. You've got to keep them in their place."  Miner also opined that the only place for women is the "kitchen and the bedroom." Once LaMont saw Miner lifting a heavy object and warned Miner not to "screw up" his back, Miner responded, "The only screwing I do is with my wife." On another occasion Miner stated to LaMont, "There is a time and a place for women and Elk River High School is not the time or the place."  Miner also differentiated female workers from male workers in the manner in which they could take breaks, assigned men and women to different work areas and prohibited the female custodians from talking unless they were on a break. Miner also instructed his night lead custodian to tell the two female custodians they could not talk to each other or to the male custodians. Miner told a male custodian not to speak to the two female custodians and that he could be "fired within 30 days" if he associated with the female custodians. Miner explained that his instructions about refraining from talking were designed to promote productivity.

The court in this case had to grapple with two issues.  First, could LaMont state a claim for a sexually hostile work environment when there was no evidence of sexual harassment.  Second, if she could state such a claim, was the evidence in this case sufficient to support such a claim?

The court held that a claim for a hostile work environment based on sex did not have to include instances of sexual harassment, i.e. sexual touching, comments or come-ons.  Rather, it held that comments and actions that were based on sex could create a hostile work environment in the absence of sexual harassment.

But the court also held that the evidence presented in this case was not sufficient for LaMont to state an actionable claim for hostile work environment.  Generally, to succeed on a hostile work environment claim, a plaintiff must prove that (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on membership in a protected group; (4) the harassment affected a term, condition or privilege of her employment; and (5) the employer knew of or should have known of the harassment and failed to take appropriate remedial action.  The employee must also show that the harassing conduct was "so severe or pervasive" as to alter the conditions of the plaintiff's employment and create an abusive working environment.

The court concluded that LaMont's working conditions were not severe or pervasive enough to constitute an actionable hostile working environment.  The court noted that none of Miner's statements were "physically threatening" and were more akin to "offensive utterances."  In sum, the court found the conduct non-actionable because it was infrequent and not severe.

Notably, two of the seven justices dissented from the opinion.  They found that it was possible for Miner's comments to have affected LaMont's terms and conditions of employment.

In my opinion, I find it hard to understand how Miner's conduct, comments and attitude, when taken as a whole and in his position as a supervisor, could not affect LaMont's employment environment negatively because of her sex.  At a minimum, it seems to me that a jury should have been given the opportunity to hear and see the witnesses testify about whether Miner's behavior was sufficient to create a hostile work environment.  But because a majority of the court held it was not, the court seems to be setting a fairly high bar for employees hoping to succeed in bringing a hostile work environment claim against their employer.