Vance v. Ball State University (7th Cir. 2011) – Who is a “Supervisor” under Title VII?
The U.S. Supreme Court will resolve a split between federal appellate courts regarding the definition of a “supervisor” for purposes of liability under Title VII. Specifically, the Court will decide whether “supervisor” under Title VII includes only those employees who have the power to “hire, fire, demote, promote, transfer, or discipline” or whether it includes any employee who has “the authority to direct and oversee the harassed employee’s daily work.”
The decision is of tremendous importance to employers, who are strictly liable for harassment inflicted by supervisors, but are liable for harassment by employees only when they were negligent in either discovering or remedying such harassment. If the Supreme Court expands the definition of “supervisor” to include anybody who has the authority to direct and oversee an employee’s daily work, the potential for strict liability for employers will expand significantly.
D.R. Horton Inc. v. NLRB (NLRB, 2012) – Are Class Action Waivers in Arbitration Agreements Unlawful?
The Fifth Circuit is going to review the decision by the NLRB in D.R. Horton that an arbitration agreement requiring employees to waive “as a condition of employment” their right to bring a joint, class or collective action violated Section 8(a)(1) of the National Labor Relations Act, which protects the rights of employees to engage in concerted, protected activity. The controversial NLRB decision called into question the growing practice of including class action waivers in employee arbitration agreements and is likely to reach the U.S. Supreme Court.
This is a significant case for employers because it impacts an employers’ ability to contract with its employees up front, as a condition of employment, over the issue of whether its employees may bring class or collective actions, which are notoriously expensive to litigate, expensive to settle, and financially risky to try in court.
Genesis HealthCare v. Symczyk (3rd. Cir. 2011) – Does Offering to Pay the Lone Plaintiff’s FLSA Claim Moot the Lawsuit Before Other Class Members Can Be Added?
In this important Fair Labor Standards Act (“FLSA”) case, the U.S. Supreme Court will resolve another split among the federal appellate courts when it determines whether an FLSA collective action becomes moot after the named plaintiff receives an offer of judgment that provides full relief. The Third Circuit Court of Appeals held that such an offer does not moot a putative action. By contrast, the Ninth and Eleventh Circuits have held that a full offer of judgment to the named plaintiff does moot a putative collective action.
The Court’s resolution of this circuit split is expected to impact an important tool that employers have relied upon in an effort to confront the recent deluge of collective wage-and-hour litigation – the payoff of the plaintiff’s claim before a class action is certified. The decision could greatly limit the ability of plaintiffs to use discovery to determine the existence of other similarly situated individuals, and will determine whether defendants can avoid a collective action by satisfying the claims of individual plaintiffs before they can join other members of their class.
University of Texas Southwestern Medical Center v. Nassar (5th Cir. 2012) – What is the Causation Requirement in a Title VII Retaliation Claim?
The U.S. Supreme Court has agreed to decide whether Title VII’s retaliation provision, and similarly worded statutes, require a plaintiff to prove a more arduous but-for causation – that an adverse action would not have been taken by an employer but for a retaliatory motive – or instead require proof only that the employer had a mixed motive, meaning that a retaliatory motive was one of several reasons for the adverse employment action. The Court’s decision is expected to provide much-desired clarity on the standard of proof.
Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice. His practice includes commercial, intellectual property and employment litigation. You can contact her directly at Leiza.Dolghih@LewisBrisbois.com or (214) 722-7108.