July 2013

As this edition of our Wessels Sherman Client Alert was headed to print, the United States Supreme Court ended its 2013 term by issuing a handful of decisions dominated by employment law issues. Below is a brief summary of these decisions, with a more elaborate assessment of their impact for employers in an upcoming Webinar on July 16, 2013. Click here for more details. Additionally, more will follow in our new Blog and on Facebook.

U of Texas S.W. Med Ctr. V. Nassar – In what may be considered a blow to affirmative action extending beyond educational institutions, to employers of all kinds, the Court applied a stricter standard of proof to support a claim of retaliation, versus one of discrimination. Whereas, a plaintiff may prevail by showing discrimination was “a factor” in an employer’s adverse employment action, to prevail on a retaliation claim a plaintiff must show that the employer would not have taken its action “but-for” a retaliatory motive. Put another way, employers can defeat retaliation claims by showing they would have taken the same action despite evidence the decision was motivated in part by retaliation.

Vance v. Ball State – Supreme Court precedent in Farragher/Elleth held that only supervisors create strict liability for their employers for sex harassment and other claims under Title VII of the Civil Rights Act. In Vance, the Court limited “supervisor” to those individuals with authority to make 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.”

United States v. Windsor – Struck down a portion of the Defense of Marriage Act and ruled that legally married same-sex couples cannot be denied the same federal benefits as married opposite sex couples.

Fisher v. U of Texas – In a case involving a White applicant’s claim she was denied admission to the U of Texas based on race, the Court created a stricter standard of scrutiny to judge the lawfulness of the University’s affirmative action policy on admissions. Good faith efforts to ensure balanced enrollment among races is insufficient.