American Medical News
By — Posted July 8, 2013
Two U.S. Supreme Court rulings in June have raised the bar for employees who claim workplace discrimination and retaliation. Legal analysts said the decisions protect physician employers from overly broad and frivolous discrimination suits by staff members, but at the same time they limit possible legal remedies for doctors who face discrimination themselves.
In University of Texas Southwestern Medical Center v. Nassar, justices in a 5-4 opinion ruled that plaintiffs who allege employers took unfair employment actions against them because of discrimination complaints must prove that retaliation was the basis for such adverse employment decisions rather than just a motivating factor. The ruling overturns a $300,000 verdict awarded to an internist who said he was denied permanent employment at a medical center for complaining about discrimination.
In another 5-4 opinion, the high court in Vance v. Ball State University et al. narrowed the definition of a supervisor for the purposes of Title VII liability. For a business to be strictly liable for an employee's actions, the ill treatment must have been conducted by a person with the ability to hire, fire or demote the plaintiff, the majority justices said.
The decisions will make it more difficult for physician employees to fight discrimination and probably will discourage such professionals from raising concerns about discrimination in the first place, said Michael L. Foreman, a clinical professor at Pennsylvania State University's Dickinson School of Law. Foreman co-wrote briefs in both cases in support of the employees on behalf of the National Employment Lawyers Assn.
“The medical profession is hard to get into, and it's hard to move forward,” Foreman said. “A lot of people are afraid to challenge in that setting. Now, you have an extremely high legal standard to get over [to prove discrimination]. I think most employees will suffer in silence.”
In the Texas case, Naiel Nassar, MD, claimed a supervisor at UT Southwestern Medical Center in Dallas was biased against him because of the physician's Middle Eastern descent. He complained about the treatment to another supervisor and in a letter to faculty after resigning his teaching post, according to court documents. At the time, Dr. Nassar had arranged to work for an affiliated hospital without being on staff at the university. After the letter was sent, a faculty administrator objected to the hospital's job offer, and the offer was withdrawn.
Dr. Nassar sued, claiming the offer was revoked as retaliation for his discrimination complaints. The university argued Dr. Nassar would not have been hired by the medical center regardless of the alleged retaliation, because of a hospital agreement requiring all physicians to be part of the university faculty. A jury ruled in favor of Dr. Nassar, and an appeals court partially upheld the verdict.
In the high court's majority opinion, Justice Anthony Kennedy wrote that Title VII retaliation claims must be proved according to traditional principles of “but-for causation,” not under lesser causation tests. Such suits require tougher standards to prevent frivolous claims and the “siphoning [of] resources from efforts by employers, agencies and courts to combat workplace harassment,” he wrote.
The Supreme Court ruling is a significant victory for large health care systems and a blow to the rights of physician employees, said Brian Lauten, Dr. Nassar's attorney.
“It's going to give people in positions of power at hospitals and in academic medicine a lot more cover and protection when they are legitimately violating someone's civil rights by some retaliatory or discriminatory motive,” Lauten said. “It's going to make it that much easier to get away with.”
But the ruling is positive for medical leaders because it allows them to take necessary employment actions without fear of bogus retaliation claims, said Mary Massaron Ross, president of DRI — The Voice of the Defense Bar. DRI issued a high court brief in support of the university.
“Where a health professional is terminated because of poor performance, they're not going to be as able to hide behind a claim of retaliation as they otherwise might have been able to do,” she said. The decision “is good for institutions to make sure they provide top-notch care and are able to address employment problems in the appropriate way.”
UT Southwestern was pleased the high court agreed with its interpretation of the law, said Daryl Joseffer, an attorney for the university.
“The court's decision affirms that employees who complain of discrimination are not entitled to preferential treatment simply because they have made a complaint,” Joseffer said in an email. “They are to be treated equally, consistent with expectations appropriate for all employees.”
In the Vance case, Maetta Vance, a black woman, sued Ball State University in Muncie, Ind., over the actions of a fellow employee, Saundra Davis. Vance claimed Davis created a racially hostile work environment in violation of Title VII. But two lower courts held that BSU was not vicariously liable for Davis' alleged actions because Davis was not a supervisor of Vance.
The Supreme Court ruled that under federal law, an employee is a supervisor for purposes of vicarious liability only if the employee is “empowered by the employer to take tangible employment actions against the victim.”
At this article's deadline, Ball State University and its attorneys had not returned messages seeking comment. An attorney for Vance was out of the country and could not be reached for comment.
The decision cleared up confusion over what constitutes a boss and provides a bright-line rule that easily can be applied by courts, employees, and employers such as hospitals and physician practices, said Leslie E. Silverman, an attorney who co-wrote a brief in favor of Ball State on behalf of the Society for Human Resources Management.
“In today's workplace, where we all wear different hats — where we're more team-based, and one day I could be leading you and one day you're leading me — we're working with a lot of different parts, and who is a supervisor is not all that clear,” she said. Holding an employer strictly liable for discrimination within such vague boundaries poses a problem.
However, Foreman said the decision will only confuse juries and attract new arguments as to what defines a “tangible employment action.” For example, if a physician works in one area of a hospital and suddenly is reassigned to another area, is such a move significant enough to be a tangible employment action?
“One of the concerns that pushed the majority in both cases is, 'We want to control litigation. We want to reduce confusion,' ” Foreman said. “I think in the long run, they probably have increased confusion and reduced clarity.”
In issuing a dissent for both cases, Justice Ruth Bader Ginsburg called on Congress to overturn the high court's rulings.
“The ball is once again in Congress' court to correct the error into which this court has fallen,” she wrote.