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Vance and Nassar: A Small Business Employer’s Guide To The Court’s Recent Title VII Rulings

Introduction

During the Supreme Court’s 2012 Term, it decided two Title VII cases with enormous implications on employer liability. In the first case, Vance v. Ball State University, the Court held that an employee is a “supervisor” for vicarious liability purposes only if the employer authorized the individual to take tangible employment actions against the victim.[i] In the second case, University of Texas Southwestern Medical Center v. Nassar, the Court held that an employer is only liable for retaliation against an employee if discrimination was the but-for cause of the employee’s termination.[ii] Both cases, decided along partisan lines with Justice Anthony Kennedy providing the deciding vote each time, narrow the scope of protection afforded to employees.

Part I of this article lays the foundation of Title VII’s legisprudence and jurisprudence. Part II discusses the Court’s recent Vance and Nassar decisions. Part III then analyzes the impact the rulings will have on the small business community, concluding that the decisions will ultimately benefit small business entrepreneurs. Finally, Part IV offers advice to small business general counsel and outside counsel with small business clients (collectively, “small business counsel”) who must apply these rulings to employer workplace policies.

I.  Title VII’s Relevant Provisions and Jurisprudence

Title VII, enacted as part of the Civil Rights Act of 1964, makes it unlawful “for an employer . . . to discriminate against any individual with respect to his . . . employment, because of such individual’s race, color, religion, sex, or national origin.”[iii] Title VII also contains two anti-retaliation provisions. The first provision relates to status-based retaliation, which prohibits employer retaliation against a protected class in the form of demotion, termination, salary reduction and the like.[iv] The second provision involves remedy-based discrimination, which prohibits an employer from retaliating against an employee who has opposed, complained of  or sought remedies against workplace discrimination.[v]

A.   Liability Based on Employee Conduct

 The Court has applied the “Ellerth/Faragher framework” to hold employers vicariously liable for actions taken by employees. Specifically, an employer is vicariously liable for a hostile work environment if the harassing employee was a supervisor who could take “tangible employment action” against the victim, which the Court has defined as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”[vi] If the employee was not a supervisor, the plaintiff’s claim proceeds under a negligence standard.[vii]

However, the Court had long overlooked one key definition: who was a supervisor? In the wake of the Ellerth/Faragher framework, the Equal Employment Opportunity Commission (EEOC) construed the term supervisor broadly. It defined a supervisor as any employee who was authorized to: (1) “undertake or recommend tangible employment decisions affecting the employee,” including “hiring, firing, promoting, demoting, and reassigning the employee;” or (2) “direct the employee’s daily work activities.”[viii] While several courts adopted this broad approach,[ix] others discarded the second form of supervisory status as being overly broad.[x]

B.    Liability Based on Retaliation

Furthermore, an employer can be held liable if it for status-based retaliation or remedy-based retaliation “because he has opposed any [prohibited employer conduct] or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing [regarding employer discrimination].”[xi] In Price Waterhouse v. Hopkins, a cobbled-together group of six Justices had previously agreed that a plaintiff could bring a status-based discrimination claim if he proved that his membership in a protected group was a “motivating” or “substantial” factor in the employer’s decision to take an adverse action against him (the motivating-factor standard).[xii] Congress eventually codified this motivating-factor standard for status-based retaliation, adding a provision to section 2000e–2 which stated: “[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”[xiii] However, Congress did not amend the “because of” language or causation standard for remedy-based retaliation.[xiv]

Thus, the Court in Nassar was faced with this issue of whether the motivating-factor standard for status-based claims also applied to remedy-based discrimination claims.[xv] The EEOC also construed remedy-based discrimination under the broader motivating-factor standard, reasoning that “an interpretation . . . that permits proven retaliation to go unpunished undermines the purpose of the anti-retaliation provisions of maintaining unfettered access to the statutory remedial mechanism.”[xvi]

II.  The Court Adopts Narrow Interpretations in Vance and Nassar

A. Vance v. Ball State University

In Vance, an African-American woman, Maetta Vance, worked as a catering assistant for Ball State University (BSU) alongside Saundra Davis, a white employee.[xvii] Vance believed Davis was harassing her on the job, so she lodged complaints with BSU and the EEOC.[xviii] When the problem was not resolved internally, Vance filed suit in federal court.[xix] She alleged that BSU had created a racially hostile work environment by allowing Davis to continue serving as her supervisor.[xx] However, the district court granted summary judgment in favor of BSU, noting that Davis was not Vance’s “supervisor” under the Seventh Circuit Court of Appeals’ narrow interpretation,[xxi] and the Seventh Circuit affirmed.[xxii]

The Supreme Court affirmed the Seventh Circuit, holding that an employee is a “supervisor” for Title VII vicarious liability purposes only if the employee was authorized to take tangible employment actions against other employees.[xxiii] In doing so, the Court established a bright-line definition of supervisor that rejected the EEOC’s broad interpretation. Writing for the majority, Justice Samuel Alito remarked“[t]angible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates.”[xxiv]

Alito then explained that the interpretation provided a bright-line test that could be easily applied to summary judgment, trial stages and jury instructions.[xxv] The EEOC’s broad standard, on the other hand, would require examination of “nebulous” factors, such as: what constitutes “sufficient authority;” what weight should be given to retaliatory acts; and how often the employee exercised supervisory authority.[xxvi]Applying this narrow definition of supervisor, the Court held that Davis’ duties at BSU were insufficient to make her Vance’s supervisor.[xxvii] Davis could not fire, demote, assign daily tasks, or take any other tangible employment action that could cause have caused Vance direct economic harm.[xxviii] Therefore, BSU was not vicariously liable for Davis’ actions.[xxix]

B. University of Texas Southwestern Medical Center v. Nassar

In Nassar, the University of Texas Southwestern Medical Center (Texas Southwestern) was affiliated with a number of healthcare facilities, including Parkland Memorial Hospital (Parkland).[xxx] Parkland had agreed to offer empty staff positions to Texas Southwestern’s faculty members; as a result, Texas Southwestern’s faculty filled most of Parkland’s staff positions.[xxxi] Naiel Nassar, an Egyptian-born, Muslim doctor at Texas Southwestern, also served as a physician at Parkland.[xxxii] Nassar believed his superior at Texas Southwestern, Dr. Beth Levine, was discriminating against him because of his religion and national origin, so he complained to Levine’s supervisor, Dr. Gregory Fitz.[xxxiii]

Before the dispute was resolved, Nassar resigned from Texas Southwestern, citing Levine’s “religious, racial and cultural bias against Arabs and Muslims.”[xxxiv] Fitz defended Levine, arguing she had been professionally humiliated and deserved a public apology from Nassar.[xxxv] When Fitz learned that Parkland had offered Nassar a staff physician job despite Nassar’s departure from the university, Fitz intervened, and Parkland withdrew its offer.[xxxvi] Nassar filed suit in federal court, alleging, among other claims, retaliation-based harassment by Fitz.[xxxvii] The district court found for Nassar,[xxxviii] and the Court of Appeals for the Fifth Circuit affirmed, holding that the EEOC’s motivating factor standard was sufficient to prove retaliation.[xxxix]

Writing for the majority, Justice Kennedy noted that Congress often wrote statutes under the backdrop of common law principles of but-for causation.[xl] Because of Congress’ failure to define the causation standard, Kennedy surmised that the provision warranted the same prevailing legal standard  that existed at the time the Civil Rights Act was passed.[xli] Specifically, when Congress passed the Civil Rights Act, causation existed under a but-for standard.[xlii] Therefore, the Court refused to apply the motivating-factor standard to remedy-based retaliation in the absence of congressional action.[xliii]

Finally, Kennedy discussed the practical effect of the majority’s  narrow reading: the decision would limit the filing of frivolous claims, “which would siphon resources from efforts by employers . . . to combat workplace harassment.”[xliv] Under the motivating-factor standard, Kennedy believed these claims could unduly increase settlement or trial costs.[xlv] It would also smear the reputation of an employer whose actions did not actually stem from discriminatory intent.[xlvi] Ultimately, the Court vacated the Fifth Circuit’s decision and remanded it so the lower court could decide whether Fitz’s intervention was the but-for cause of Nassar’s Parkland offer being rescinded.[xlvii]

III.  Vance and Nassar’s Impact on Small Businesses

A. Small Business Aspects That Differ From Large Corporate Structures

Title VII is the most litigated portion of the Civil Rights Act,[xlviii] and Congress often devises legislation without considering the burden on small businesses.[xlix] This divide ignores the modern realities of the small business community,[l] though, because it does not consider unique small business aspects like workplace hierarchies and market constraints.

1. Workplace Hierarchies in Small Businesses

Workplace hierarchies vary widely across the country and between industries, and small businesses have trended more towards autonomous teams comprised of “quasioverseer” employees.[li] As a result, the only supervisor with the ability to take tangible employment actions in a small business is usually the owner himself.[lii] According to a National Federation of Independent Business study, sixty-two percent of small business employees have occasionally exercised supervisory authority under the EEOC’s broad definition, but those same employees were never able to exercise tangible employment action against co-workers.[liii] Thus, the EEOC’s broad definition would have actually christened the majority of small business employees as supervisors.

Furthermore, small businesses often utilize non-linear management structures to allow more flexibility with employee schedules.[liv] Small businesses typically have an ordinary employee cover for a manager on duty when that person goes on break.[lv] However, this covering employee is never endowed with the ability to take tangible employment action.[lvi] Other times, employees may be paid slightly more than other co-workers for reasons unrelated to job responsibilities, like seniority.[lvii] This increased pay is meant to incentivize experienced employees to stay with the small business, not necessarily to reward them for having a greater grant of authority from an employer. Under the EEOC’s broad definition of supervisor, all employees in these situations would be at risk of being considered a supervisor and would increase employer liability costs.[lviii]This would ultimately result in less effective screening, training, and monitoring of these employees because comprehensive training modules are more difficult to develop and properly administer when they must be given to a larger set.[lix]

2. Market Constraints on Small Businesses

Due to their insular positions in the capital markets, small businesses also face greater difficulties restructuring compliance initiatives to comport with shifting legal regimes. Surprisingly, only twelve percent of small businesses have at least one employee whose sole duty is to handle compliance or human resources developments when the law changes.[lx] Moreover, small businesses often lack the resources enjoyed by large corporations to “parse the language of complicated legal standards before making decisions that could expose them to significant liability.”[lxi] Large corporations, on the other hand, benefit from economies of scale and have better access to additional capital than small businesses. Large businesses may reallocate funds from marketing, research or technology, but small businesses may only have the option of raising prices on consumers to cover increased litigation costs.

Also, small businesses often lack the resources necessary to meet their litigation needs, so when a lawsuit is filed against them, it may cost small businesses more to defend a claim than to simply settle outside of court.[lxii] It costs employers: between $4000–10,000 to comply with an EEOC investigation; at least $75,000 to defend a claim on summary judgment; and between $125,000–500,000 to litigate a case before a jury.[lxiii] As a result, even if a claimant brings a frivolous claim, small businesses may feel forced to pay more to settle to avoid additional costs associated with litigation and attorney’s fees.This is especially true given the increase in the frequency of retaliation charges in recent years despite the fact the EEOC itself has determined many are without merit.[lxiv] In 2012 alone, only six percent of the retaliation claims brought before the EEOC exhibited some good-faith foundation for retaliation.[lxv]

B.  Small Business Benefits from the Vance and Nassar Rulings

The threat of vicarious liability causes employers to use their limited resources to enact preventive policies relating to the employees who have the greatest potential to abuse their authority: supervisors.[lxvi] By encouraging employers to focus their preventive efforts on a smaller subsection of employees, Vance’s narrow definition of supervisor promotes avoidance of harassment liability by efficiently allocating resources.[lxvii] Under Vance’s interpretation of supervisor, merely allowing an employee to direct a co-worker’s activities will not upgrade an employee to supervisor status.[lxviii] An employer will have to vest an employee with plenary authority to take tangible employment actions in order to subject itself to increased liability. Under the Vance regime, supervisory status will now be determined as a matter of law before trial commences.[lxix]

And under Nassar’s but-for causation standard for retaliation, an employer has an easier time showing that other factors led to an adverse employment action against an employee. Retaliation claims have nearly doubled in the past fifteen years, from approximately 16,000 claims filed in 1997 to over 31,000 in 2012.[lxx] In fact, only status-based claims dealing with race are filed more often,[lxxi] but Title VII litigants often allege discrimination and retaliation simultaneously.[lxxii] Under Nassar, judges will now have clearer standards before sending cases to juries.[lxxiii] This reduces the possibility that a jury could find against an employer, and studies have suggested that juries are more sympathetic to employers in discrimination cases than in retaliation cases.[lxxiv] Indeed, juries have sometimes exonerated employers from discrimination charges, only to find against the employer on retaliation grounds.[lxxv]

Ultimately, both cases aid employers when it comes to crafting a strategy to limit their exposure to workplace liability. Under Vance, an employer can minimize its potential liability by simply limiting the number of employees it authorizes to take tangible employment actions. Under Nassar, it is much easier for an employer to present evidence that discrimination was not the but-for cause of the employee’s termination instead of simply a motivating factor.[lxxvi] The twin decisions will ultimately reduce these costs placed on small businesses faced with combatting  discrimination claims and will reduce settlement values across the board.[lxxvii] The practical effect of these narrow, textualist interpretations is that it favors small businesses by allowing them to devote fewer resources to their legal concerns.

IV.  Advice for Small Business Counsel

Even though the Vance and Nassar decisions are employer-friendly rulings, small business counsel must remain proactive to protect their clients’ interests. Title VII still encourages employers to craft effective anti-harassment policies and grievance mechanisms by threatening them with liability if they are negligent in detecting workplace harassment.[lxxviii] Harassment victims may still seek a remedy for discrimination, albeit with a higher burden. As Vance made clear, applying the negligence framework of liability for non-supervisors provides a sufficient model to evaluate employer liability without saturating businesses with litigation costs.[lxxix] Evidence that an employer did not prevent foreseeable harassment situations, failed to respond to discrimination allegations or did not provide an adequate grievance filing mechanism could still impart liability on small businesses.[lxxx] In fact, plaintiffs were still able to obtain relief in the circuits that applied the Court’s narrow definitions of supervisor and retaliation.[lxxxi]

Small business counsel therefore should advise clients to maintain robust antidiscrimination policies and to regularly educate employees on workplace harassment awareness. In fact, some states require employers to provide harassment training to employee.[lxxxii] Even if these are not required by law, these techniques can often aid an employer in winning dismissal of a discrimination or retaliation claim in court.[lxxxiii] Some procedures small business counsel should advise their clients to take are:

(1) Insert arbitration clauses into employment contracts. Small businesses benefit greatly from the ability to arbitrate claims, and mandatory arbitration clauses are generally enforceable.[lxxxiv] Arbitration saves small businesses valuable litigation resources because it requires fewer pretrial procedures and limits discovery.[lxxxv] Arbitration also allows a small business to safeguard its reputation[lxxxvi] by requiring settlement terms to remain confidential.[lxxxvii] Overall, inserting mandatory arbitration clauses into employment contracts allows small businesses to maintain control over contractual disputes.[lxxxviii]

(2)Review employee job descriptions. Small business entrepreneurs should review their job descriptions for managers and other employees who may occasionally oversee the work of others in the company. Position descriptions should expressly delineate between an employee’s ability (or inability) to take tangible employment actions.[lxxxix] Evidence of employee job descriptions can mitigate factual disputes about whether an employee is a supervisor under the Vance interpretation of the term.[xc]

(3) Revisit anti-harassment policies. Most employees’ understanding of workplace discrimination comes not from reading about recent legal developments, but from their employers’ corporate policies.[xci]In fact, some scholars consider the popularity of internal corporate policies to be the most significant development in employment discrimination in the last two decades.[xcii] Some employers define discrimination broader than the legal definitions of discrimination because they have often include situations that seem like harassment to a lay person but extend beyond the legal contours of discrimination.[xciii] Employers take these prophylactic measures in order to minimize their liability, even if it may create an impression in employees’ minds that Title VII protections are broader than the law actually allows.[xciv] Notwithstanding this seeming reliance, though, employees who wish to argue that their employer’s policy incentivized them to report supposed misconduct often cannot use this subjective evidence in court.[xcv]

Additionally, anti-harassment policies play a role in cases where plaintiffs are seeking punitive damages. In order to recover punitive damages under Title VII, a claimant bears the burden of showing the employer acted with a reckless disregard towards employee rights.[xcvi] However, employers can rebut this evidence by simply showing they have adopted anti-harassment policies and educated their employees about their Title VII protections.[xcvii]

Furthermore, studies indicate that the EEOC is significantly less likely to find “cause” in discrimination allegations when employers have anti-harassment policies than if they do not.[xcviii] Thus, demonstrating a visible commitment to preventing discrimination can reduce an employer’s liability.[xcix] Ultimately, effective corporate policies can help small businesses establish that any perceived discrimination or retaliation was unintentional.[c]

(4) Encourage grievance reporting. Title VII compliance also depends upon the willingness of employers to establish effective grievance reporting protocols and the willingness of employees to file complaints and assist in investigations.[ci]Small businesses should encourage employees to file grievance reports to a person higher than the co-worker who oversees their work production if they believe they are the victim of discrimination.[cii] It is important that employers encourage employees to report any instances of perceived harassment in clear and precise terms.[ciii] Once a grievance procedure is in place, the small business must ensure that it is effectively followed, too. Having a grievance reporting procedure that is never followed increases the chances that an employee with forego internal complaint channels, thereby eroding the small business’ reputation if the case goes to trial.[civ]

Grievance procedures are the most rational way for employers to insulate themselves from liability.[cv] Nearly 95% of employers already have grievance procedures in place for reporting harassment.[cvi] Most employees first attempt to negotiate with employers, but even if they do wish to lodge a formal complaint, they often do so using their employers’ grievance procedures.[cvii] Furthermore, courts have generally offered a lower level of protection to employees who use an employer’s internal channels for reporting harassment than those who lodge complaints through external channels like the EEOC.[cviii]

(5) Supplement anti-harassment policies and grievance procedures with employee training programs. Employers should have an express antidiscrimination policy and should implement this policy through various training programs. But a small business cannot simply glance over its anti-retaliation message during training sessions; it needs to be evident throughout the entire antidiscrimination training.[cix] Generally, antidiscrimination trainings should educate employees on how to identify, report, and prevent harassment.[cx]

Although it may be expensive for small businesses to hold trainings for all employees every year, small businesses can utilize more cost-effective techniques such as handing out a simple reminder of the company’s anti-harassment policy or sending company-wide emails.[cxi]The employer can also post signs around the employee break room that emphasizes the importance of a harassment-free work environment.[cxii] Some small businesses have even begun utilizing “burst learning” by sending out short videos several times a year that remind employees of the company’s values and policies.[cxiii]

(6) Respond promptly to discrimination allegations and comply with EEOC investigations. Small business employers should respond to harassment complaints immediately, usually by launching an internal investigation into the matter.[cxiv] When the investigation is underway,the employer should document all discussions about its course of action, as well as its reasoning for each action.[cxv] This creates a track record for the employer’s benefit if it must present evidence that its decision was not the determinative factor in firing or demoting the employee—especially if the litigant lodges another complaint against an employee during this investigation period.[cxvi] Managers should also avoid discussions with the alleged victim that could be seen as an attempt to obstruct an EEOC investigation.[cxvii]

While an investigation is in progress, the employer should move the complainant to another department. If that is not possible, the employer should make every attempt to have the alleged victim and alleged harasser work during different shifts.[cxviii] Finally, the employer should refrain from simply firing the alleged offender, as this may give the alleged harasser cause to file a wrongful termination claim.[cxix]

(7) Be aware of Title VII state and local analogs. The narrower treatment of supervisor liability and retaliation protection may push some plaintiffs to seek recourse using state equivalents instead of or in addition to Title VII when the state or local law offers more favorable legal standards to employees.[cxx] An employee who sees his or her federal claim fail may still find relieve under state law. For example, California’s Title VII equivalent, the Fair Employment and Housing Act (FEHA), statutorily defines supervisory status more broadly than the Vance Court.[cxxi] FEHA considers an individual a supervisor if the employee: (1) can take tangible employment actions against an employee, (2) has the authority to “assign, reward, or discipline” other employees, or (3) has been imbued with the “responsibility to direct” other employees.[cxxii] California courts have also interpreted FEHA’s overarching purpose broadly to protect an employee’s right to work in a non-hostile environment.[cxxiii]

Similarly, some state and local laws have provided for a broader scope of causation in retaliation cases. The District of Columbia Human Rights Act, for instance, allows a plaintiff in a state law retaliation case to prevail simply by proving that retaliation was a motivating factor in the employer’s actions, regardless of legitimate business reasons.[cxxiv] Therefore, employers should remain vigilant and not relax their corporate policies. If the small business operates solely or primarily in one jurisdiction, small business counsel should advise the employer it should consider incorporating these state law standards into its anti-harassment policies and training modules.

Conclusion                                            

Small businesses are often asked to bear equally the brunt of all consequences that changing legal regimes also create for large corporations despite having different workplace hierarchies and market constraints. However, two recent Title VII decisions by the Court have narrowed the scope of employer liability and are undoubtedly wins for small business employers. In Vance, the Court limited vicarious liability to those supervisors that are authorized to take tangible employment actions against employees. And in Nassar, the Court endorsed the but-for standard of causation in remedy-based retaliation claims.The combined effect of these decisions will benefit small businesses by reducing litigation costs and preventing claims from reaching juries. Nevertheless, small business owners must remain proactive in stamping out workplace hostilities by having robust anti-harassment procedures. Once small businesses are able to effectively protect their corporate assets, they can then turn their attention to more important matters: making a profit.


[i]Vance v. Ball St. Univ., 133 S. Ct. 2434, 2439 (2013).

[ii]Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013).

[iii]42 U.S.C. § 2000e–2(a)(1) (2012).

[iv]See id.

[v]Id. § 2000e–3(a).

[vi]Faragherv. City of Boca Raton, 524 U.S. 775, 790 (1998).

[vii]Id.

[viii]EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 BNA FEP Manual 405:7651 (Feb. 2003).

[ix]See, e.g., Whitten v. Fred’s, Inc., 601 F.3d 231, 245–47 (4th Cir. 2010); Mack v. Otis Elevator Co., 326 F.3d 116, 126–27 (2d Cir. 2003).

[x]See, e.g., Noviello v. Boston, 398 F.3d 76, 96 (1st Cir. 2005); Weyers v. Lear Operations Corp., 359 F.3d 1049, 1057 (8th Cir. 2004); Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1033–34 n.1 (7th Cir. 1998).

xi 42 U.S.C. § 2000e-2(m) (2012).

[xii]Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989) (plurality opinion); id., at 259 (White, J., concurring in judgment); id., at 276 (O’Connor, J., concurring in judgment).

[xiii]42 U.S.C. § 2000e–2(a) (2012).

[xiv]See id. § 2000e–2(m).

[xv]See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2522 (2013).

[xvi]2 EEOC Compliance Manual § 8–II(1), pp. 614:0007–614:0008, n.45 (Mar. 2003).

[xvii]Vance v. Ball St. Univ., 133 S. Ct. 2434, 2439 (2013).

[xviii]Id. Specifically, Vance alleged that Davis often glared at her, slammed pots around her and blocked her from using the elevator with Davis’ catering cart. Id.

[xix]Id.

[xx]Complaint in No. 1:06-cv-01452-SEB-TAB (S.D. Ind., Oct. 3, 2006), Dkt. No. 1, pp. 5–6.

[xxi]Vance v. Ball St. Univ., 2008 WL 4247836, at *1 (S.D. Ind., Sept. 10, 2008).

[xxii]Vance v. Ball St. Univ., 646 F.3d 461, 470–73 (7th Cir. 2011).

[xxiii]Vance, 133 S. Ct. at 2439.

[xxiv]Id. (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762 (1998)) (internal quotations marks omitted).

[xxv]Id. at 2444, 2449.

[xxvi]Id. at 2450.

[xxvii]Id. at 2454.

[xxviii]Id.

[xxix]Id.

[xxx]Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2523 (2013).

[xxxi]Id.

[xxxii]Id.

[xxxiii]Id. For example, Nassar alleged that Levine singled him out for his billing methods and made derogatory comments about Middle Easterners. Id.

[xxxiv]Id. at 2523–24.

[xxxv]Id. at 2524.

[xxxvi]Id.

[xxxvii]Id.

[xxxviii]Id.

[xxxix]Nassar v. Univ. of Tex. Sw. Med. Ctr., 674 F.3d 448,  454 n.16 (5th Cir. 2012).

[xl]Nassar, 133 S. Ct. at 2525.

[xli]Id. at 2528.

[xlii]Id.

[xliii]Id.

[xliv]Id. at 2531–32.

[xlv]Id. (citing Vance v. Ball St. Univ., 133 S. Ct. 2434, 2443–45 (2013)).

[xlvi]Id. at 2532.

[xlvii]Id. at 2534.

[xlviii]William N. Eskridge, Jr., et al., Cases and Materials on Legislation: Statutes and the Creation of Public Policy 38 (4th ed. 2007).

[xlix]Brief for Nat’l Fed’n Indep. Bus. Small Bus. Legal Ctr. et al. as Amici Curiae Supporting Respondent, Vance v. Ball St. Univ., 133 S. Ct. 2434 (2013) (No. 11-556), 2012 WL 5353863, at *7 [hereinafter, “NFIB Brief”].

[l]See id.

[li]Id.

[lii]Id.

[liii]NFIB National Small Business Poll, Business Structure, Vol. 4, Issue 7 (2004).

[liv]NFIB Brief, supra note xlix, at *7.

[lv]NFIB National Small Business Poll, supra note liii.

[lvi]Id.

[lvii]NFIB Brief, supra note xlix, at *11.

[lviii]Id. at *8.

[lix]Brief for Chamber of Commerce of the United States of America and the Retail Litigation Center as Amici Curiae Supporting Petitioner, University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013) (No. 12-484), 2013 WL 956346, at *17 [hereinafter, “Chamber of Commerce Brief”].

[lx]NFIB National Small Business Poll, supra note liii.

[lxi]NFIB Brief, supra note xlix, at *2.

[lxii]Stephen C. Yeazell, Civil Procedure 878, 880 (8th ed. 2012) (discussing this concept in the context of mass tort claims).

[lxiii]David Sherwyn et al., Assessing the Case for Employment Arbitration: A New Path for Empirical Research, 57 Stan. L. Rev. 1557, 1579 (2005) (footnote omitted).

[lxiv]Chamber of Commerce Brief, supra note 158, at *11–12.

[lxv]Id.

[lxvi]Brief for Chamber of Commerce of the United States of America as Amici Curiae Supporting Respondent, Vance v. Ball St. Univ., 133 S. Ct. 2434 (2013) (No. 11-556), 2012 WL 5361524, at *5.

[lxvii]See Jodi R. Mandell, Mack v. Otis Elevator: Creating More Supervisors and More Vicarious Liability for Workplace Harassment, 79 St. John’s L. Rev. 521, 549 (2005).

[lxviii]See Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 848 (7th Cir. 2008).

[lxix]Mark Phillis & Denise Visconti, The Supreme Court Clarifies Who Is A Supervisor Under Title VII, Littler Mendelson (Feb. 12, 2014, 7:35 PM), http://www.littler.com/publication-press/publication/supreme-court-clari....

[lxx]EEOC, Charge Statistics FY 1997 Through FY 2012, http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (last visited Jan. 17, 2013 9:20 PM).

[lxxi]Id.

[lxxii]Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2535 (2013) (Ginsburg, J., dissenting).

[lxxiii]Kevin Russell, Court Rules for Employers in Two Employment Discrimination Cases, ScotusBlog (June 24, 2013, 3:44 PM),http://www.scotusblog.com/2013/06/court-rules-for-employers-in-two-emplo....

[lxxiv]Abigail Caplovitz Field, Responding to Retaliation Suits after Vanceand Nassar, Corporate Secretary (Sept. 16, 2013), http://www.corporatesecretary.com/articles/regulation-and-legal/12533/re....

[lxxv]Id.

[lxxvi]Jon D. Bible, Nassar and Vance: Supreme Court Limits Scope of Title VII of the Civil Rights Act of 1964, American Bar Association (Sept. 2013),http://www.americanbar.org/publications/blt/2013/09/keeping_current.html.

[lxxvii]Russell, supra note lxxiii.

[lxxviii]Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759, 764 (1998).

[lxxix]Vance v. Ball St. Univ., 133 S. Ct. 2448 (2013). See also Mandell, supra note lxvii, at 552.

[lxxx]Cf. Vance, 133 S. Ct.at 2453.

[lxxxi]See, e.g., EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 684 (8th Cir. 2012).

[lxxxii]See, e.g., Me. Rev. Stat. § 807(3) (2012).

[lxxxiii]See, e.g., Brinkley v. Green Bay, 382 F. Supp. 2d 1052 (E.D. Wis. 2005).

[lxxxiv]See 9 U.S.C. § 2 (2012).

[lxxxv]Theodore O. Rogers, Jr., The Procedural Differences Between Litigating in Court and Arbitration: Who Benefits?, 16 Ohio St. J. on Disp. Resol. 633, 639–40 (2001).

[lxxxvi]Amy J. Schmitz, Untangling the Privacy Paradox in Arbitration, 54 U. Kan. L. Rev. 1211, 1224 (2006).

[lxxxvii]Christopher R. Drahozal & Stephen J. Ware, Why Do Businesses Use (or Not Use) Arbitration Clauses?, 25 Ohio St. J. on Disp. Resol. 433, 452 (2010).

[lxxxviii]Id.

[lxxxix]Julia E. Judish et al., Impact of Supreme Court Pro-Employer Title VII Decisions Blunted by State Laws, Pillsbury 5 (July 8, 2013), available at http://www.pillsburylaw.com/publications/impact-of-supreme-court-pro-emp....

[xc]Id.

[xci]Deborah L. Brake, Retaliation in an EEO World, 89 Ind. L.J. 115, 116 (2014).

[xcii]See id. at 128. See also Frank Dobbin, Inventing Equal Opportunity 1–21 (2008) (arguing that the propagation of employer policies was not merely a reaction to developments in employment law, but also a driving force in the law’s development).

[xciii]Brake, supra note xci, at 119.

[xciv]Chamber of Commerce Brief, supra note lix, at *21.

[xcv]Id. at 118.

[xcvi]Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 545 (1999).

[xcvii]Id.

[xcviii]Cf. Elizabeth Hirsh & Sabino Kornrich, The Context of Discrimination: Workplace Conditions, Institutional Environments, and Sex and Race Discrimination Charges, 113 Am. J. Sociology 1394, 1424–25 (2008).

[xcix]C. Elizabeth Hirsh, Settling for Less? Organizational Determinants of Discrimination-Charged Outcomes, 42 Law & Soc’y Rev. 239 (2008).

[c]Field, supra note 182.

[ci]Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2537 (2013) (Ginsburg, J., dissenting).

[cii]Cf. Huston v. Proctor & Gamble Paper Prods. Corp., 568 F.3d 100, 108–09 (3d Cir. 2009).

[ciii]Brake, supra notexci,at 119.

[civ]Field, supra note lxxiv.

[cv]Lauren B. Edelman, Rivers of Law and Contested Terrain: A Law and Society Approach to Economic Rationality, 38 Law & Soc’y Rev. 181, 190 (2004).

[cvi]Brake, supra note xci, at 119.

[cvii]Id. at 133.

[cviii]Id. at118.

[cix]Field, supra note lxxiv.

[cx]Alan S. Gutterman, SCO[T]US Clarification Of “Supervisor” Definition Does Not Reduce Compliance Program Requirements, Business Counselor Blog (Oct. 14, 2013), http://alangutterman.typepad.com/businesscounselor/employment/. See also Brake, supra note 199, at 119 (explaining that many small business employees are not told their duties to report harassment).

[cxi]Field, supra note lxxiv.

[cxii]Gutterman, supra note cx.

[cxiii]Field, supra note lxxiv.

[cxiv]Alan S. Gutterman, New Supreme Court Rulings Will Influence Judicial Standards Relating to Harassment Claims, FindLaw (July 1, 2013), http://corporate.findlaw.com/litigation-disputes/new-supreme-court-rulin....

[cxv]Judish et al., supra note lxxxix, at 5.

[cxvi]Id.

[cxvii]Field, supra note lxxiv.

[cxviii]Gutterman, supra note cxiv.   

[cxix]Joseph J. Ward, A Call for Price Waterhouse II: The Legacy of Justice O’Connor’s Direct Evidence Requirement for Mixed-Motive Employment Discrimination Claims, 61 Alb. L. Rev. 627, 659 (1997).

[cxx]Judish et al., supra note lxxxix, at 4.

[cxxi]See Cal. Gov’t Code § 12926(s).

[cxxii]Id.

[cxxiii]Judish et al., supra note lxxxix, at 5.

[cxxiv]Propp v. Counterpart Int’l, 39 A.3d 856, 870 (D.C. 2012).

Mike Disotell © Copyright 2014

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About this Author

Michael Wayne Disotell, Ohio State College of Law, Student
Law Student

Mike Disotell is a third-year student at The Ohio State University Moritz College of Law. He graduated magna cum laude from Westminster College. He will be starting at the firm  Orrick, Herrington & Sutcliffe LLP upon graduation.

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