Labor Watch



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José J. Santiago



Carlos A. Padilla



Antonio L. García



Edgardo Barreto







I. Vance v. Ball State University, June 24, 2013

The Supreme Court held that an employee is a “supervisor” for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the alleged victim. A tangible employment action means 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. The case involves a claim of racially hostile work environment under Title VII.


The decision clarifies the Court’s standard for determining employer liability for workplace harassment under Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v. Boca Raton, 524 U. S. 775 (1998). The Court explained that under Title VII, an employer is liable for workplace harassment by a victim’s co-worker only if it was negligent in controlling working conditions i.e., if the employer knew or reasonably should have known about the harassment but failed to take remedial action. However, if the harasser is a “supervisor,” and the harassment culminates in a tangible employment action, the employer is strictly liable. If the harasser is a supervisor, but no tangible employment action is taken, the employer may avoid liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.


The Supreme Court rejected the more open-ended definition of “supervisor” advocated by the EEOC’s Enforcement Guidance, which ties supervisor status to the ability to exercise significant direction over another’s daily work. This decision should provide more clarity as to potential liability to employers who face claims of workplace harassment under Title VII.

II. University of Texas Southwestern Medical Center v. Nassar, June 24, 2013

The Supreme Court established a stricter legal standard for plaintiffs who assert that they faced adverse employment actions in retaliation for complaining about employment discrimination. The Court held that the plaintiff must prove that the retaliation was not just a motivating factor in the negative employment action (along with other lawful factors) but the determinative factor, known as but-for causation.


The plaintiff was both a University faculty member and a Hospital staff physician. He claimed that one of his supervisors at the University was biased against him on account of his religion and ethnic heritage. He complained to the supervisor’s superior, the University’s Chair of Internal Medicine. After plaintiff arranged to continue working at the Hospital without also being on the University’s faculty, he resigned his teaching post and sent a letter stating that he was leaving because of the alleged harassment. The Chair considered plaintiff’s letter a public humiliation to the supervisor and objected to the Hospital’s job offer, which was then withdrawn.


Plaintiff alleged that he had been constructively discharged and that the Hospital had retaliated against him for complaining about the alleged harassment. The district court had found for the plaintiff on both claims and the appeals court vacated the constructive discharge claim but upheld the retaliation one. The Supreme Court held that the lower court had applied the wrong standard to the retaliation claim and vacated its decision.


The Labor Law Group at Fiddler González & Rodríguez, P.S.C., will issue the FGR LABOR WATCH with information of legal issues and developments in areas of interest to our friends and clients. If you know anyone who would like to receive the FGR LABOR WATCH, please feel free to forward this newsletter. For more information about any matter raised in this Labor Watch, please contact your usual FGR labor lawyer or José A. Silva Cofresí at

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