Pub. 3 2013-2014 Issue 2

20 O V E R A C E N T U R Y : B U I L D I N G B E T T E R B A N K S - H E L P I N G C O L O R A D A N S R E A L I Z E D R E A M S The plaintiff in this case, Vance, alleged that she had been harassed by Davis, that Davis was her supervisor, and that the employer was therefore liable for the harassment. The Supreme Court ruled that because Davis did not have the power to take tangible employment actions against Vance, he did not qualify as her “supervisor,” and the employer was not automatically liable for the harassment. Tangible employment actions include such actions as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a significant change in benefits. Merely having the power to as - sign daily tasks is not sufficient. An employer can still be held liable for harassment by a co-worker if the employer is found negligent in allowing the harassment to occur. This decision will make it more difficult for some plaintiffs to prevail on hostile work environment claims. Banks and other employers may also want to take this decision into account when deciding which management employees should be authorized to take tangible employment actions. Imposing more centralized control over such decisions may help avoid liability in some cases. University of Texas Southwestern Medical Center v. Nassar. Also decided on June 24, 2013, this case imposed a greater burden of proof on plain - tiffs asserting claims of retaliation under Title VII (the federal statute prohibit - ing discrimination on the basis of race, color, sex, religion, and national origin). In cases asserting discrimination under Title VII, the plaintiff only needs to prove that his or her protected status was one of potentially many motivating factors in the decision to take adverse action against the plaintiff. In Nassar, however, the Supreme Court ruled that claims of retaliation against a plaintiff for engaging in protected action under Title VII require the plaintiff to prove that “but for” the employer’s desire to retaliate, the adverse action would not have been taken. It is not sufficient to merely show that retaliation was one of several motives for the action. The Court’s decision in Nassar is a technical one, and it shouldn’t have any effect on how banks conduct business or handle employment matters (retalia - tion is to be avoided nomatter what the burden of proof may be). For employers defending against such claims, however, the Court has made it more difficult for employees to prevail. Conclusion As more and more employment laws continue to be enacted, amended, and interpreted by state and federal legislatures and courts, it becomes increas- ingly important for banks and other employers to stay on top of the changes. Consulting with legal counsel before taking significant employment actions may often be a cost-effective way to reduce legal fees and exposure in the employment area. n Brent Johnson is an employment attorney with the Denver firm Fairfield and Woods, P.C. He can be reached at bjohnson@fwlaw.com.  EMPLOYMENT LAW – continued