Human Resource Updates
Posted on: August 26th, 2013

Over the summer of 2013, the United States Supreme Court issued a couple of decisions that could impact businesses as they encounter possible claims of discrimination and retaliation.

When an employee asserts a claim against the business, the employee’s burden of proving the business discriminated against the employee often is measured by a “producing cause” burden of proof.  Under such a burden of proof, the employee would need to prove that the discrimination was a “producing cause” of the employee’s claim against the business.  However, the Supreme Court found a different standard was applicable to claims of retaliation.  Under a claim for retaliation, the employee now must meet a “but for” burden of proof.  The “but for” standard is more difficult for the employee to establish than the “producing cause” standard, which is good for businesses.  Therefore, fewer claims of retaliation are likely to occur.

Another case decided by the United States Supreme Court clarified who is a supervisor.  When a discrimination claim is filed against a business due to a “tangible employment action” being taken against the employee by a supervisor, the business can be strictly liable.  However, if no “tangible employment action” has been taken by a supervisor, the employee must meet his burden of proof, and the employer has an affirmative defense to assert against the employee.  Under the Supreme Court’s recent decision, the question became who was a supervisor of the employee.  The Supreme Court found that a supervisor is one who can hire, fire, and discipline.  In today’s business world, that means that oftentimes one who might have been considered a supervisor (i.e. one who can control the schedule and duties of an employee) is no longer considered as such according to The Supreme Court’s clarification.  This decision is another one that benefits businesses, but it does not mean that businesses are immune from discrimination claims.

While these two decisions benefit businesses generally, the businesses still must properly train its employees on discrimination.  If your business needs help in training or in how to implement a business plan due to the recent Supreme Court decisions, the attorneys at The McCleskey Law Firm can assist your business in developing and maintaining an effective business model as it pertains to claims of discrimination.

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