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On Monday, June 24, 2013, a sharply divided U.S. Supreme Court (“Court”) (5-4 decisions) narrowed the ability of employees to sue their employers under Title VII harassment and retaliation theories of recovery.  Also, in a 7-1 vote the Court let stand the current test for the validity of college affirmative action programs.

In University of Texas Southwestern Medical Center v. Nassar, 12-484, the University sought dismissal of an harassment lawsuit filed by Dr. Nassar.  Dr. Nassar was awarded $3,000,000.00 after a jury trial.  Dr. Nassar left Texas for a job with Parkland Hospital after complaining of harassment. However, Parkland withdrew its job offer after one of his former medical center supervisors opposed it.  Dr. Nassar sued claiming Texas retaliated against him for his harassment complaints.  Texas appealed arguing the trial judge erred by submitted a mixed-motive jury instruction – i.e., retaliation was a motivating factor in the supervisor’s actions.  Texas argued the “but for” analysis was the proper standard to be used.  The Court agreed with Texas holding that employees “must establish that his or her protected activity was a but for cause of the alleged adverse action by the employer”.  The Court remanded the case for further assessment by the lower courts.

In Vance v. Ball State University, 18-556, Vance, a catering specialist, accused a co-worker of racial harassment and retaliation.  Vance alleged that the co-worker was a supervisor.   The district court and the 7th Circuit Court of Appeals disagreed with Vance finding the co-worker was not a supervisor.  The Court agreed with the 7th Circuit holding that a co-employee must have the authority to “hire, fire, demote, promote, transfer or discipline” to be considered a supervisor.

In Fisher v. University of Texas at Austin, 11-345, the Court wrote that a lower court should approve the use of race as a factor in admissions only after it concludes “that no workable race neutral alternatives would produce educational benefits of diversity”.  The Court held the lower court failed to utilize the highest level of judicial scrutiny when it upheld the Texas plan and remanded the case for further review.  The Court continues to follow its 1978 standard for affirmative action plans, most recently reaffirmed in Grutter v. Bollinger in 2003.

For more information contact Joseph F. Spitzzeri @ or at (312) 984-6683.