Murtha Means More

United States Supreme Court Hands Employers Two (Limited) Victories

June 24, 2013

Hidden among the news coverage of the Supreme Court’s decision on affirmative action in higher education and the anticipation over the same-sex marriage cases expected to be decided later this week are two decisions by the Court that are favorable to employers.  Both cases were decided by 5-4 majorities in which the dissenting opinions were sharply worded.  Ultimately, neither decision will have much day-to-day impact on employers in New England, but will provide employers who are facing actual lawsuits with a little more leverage and a somewhat higher chance of a favorable outcome in such cases.

The first case decided involved when an employer is liable for the illegal harassment of one employee by another.  Prior cases had held that an employer bears greater responsibility for harassment from a “supervisor” than from a “co-worker.”  What exactly separated “supervisors” from mere “co-workers” was not entirely clear, however, and different federal courts throughout the country had answered the question differently.  The Supreme Court took a relatively narrow definition of “supervisor” for these purposes and held that the increased liability existed only when the harasser is empowered by the employer to take “tangible employment actions” such as hiring, firing, demoting, promoting, transferring or disciplining another employee.  Individuals who merely direct the work of others without the power to actually change the other employee’s job will be seen as co-workers for purposes of assessing employer liability.

The second case involved the standard of proof in cases of retaliation under federal anti-discrimination laws.  Several federal courts had held that such retaliation cases should be evaluated by whether the retaliatory motive was simply a factor among many, rather than the “but for” cause of,  the termination or discipline being challenged, while others had held that the retaliatory motive must actually have caused the challenged action.  The Supreme Court sided with the tougher “but for” standard in retaliation cases.

State laws throughout New England are interpreted independently of federal laws, and given the 5-4 split on the High Court on these issues it is quite possible, even likely, that state courts in New England applying state anti-discrimination statutes will come out differently.  Even if the state laws conform to these new federal rulings, however, the changes will have minimal impact on how employers run their workplaces.  Sexual and racial harassment remains illegal and employers still have a responsibility to take effective steps to eradicate it; retaliation for complaining about discrimination remains illegal and a minimally different burden of proof does not change that.  The Supreme Court is signaling support for employers in lawsuits, although by the narrowest of margins.

If you have questions about the issues addressed here, or questions about any matters involving labor and employment, please contact Hugh F. Murray at

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