The court’s conservatives, in two 5-4 decisions, ruled that a person must be able to hire and fire someone to be considered a supervisor in discrimination lawsuits, making it harder to blame a business for a co-worker’s racism or sexism.
The court then decided to limit how juries can decide retaliation lawsuits, saying victims must prove employers would not have
taken action against them but for their intention to retaliate.
Justice Ruth Bader Ginsburg wrote both dissents for the court’s liberal wing and, in a rare move, read them aloud in the courtroom. She said the high court had “corralled Title VII,” a law designed to stop workplace discrimination.
“Both decisions dilute the strength of Title VII in ways Congress could not have intended,” said Ginsburg, who called on Congress to change the law to overturn the court.
IN THE FIRST CASE, the University of Texas Southwestern Medical Center wanted a discrimination lawsuit won by Dr. Naiel Nassar thrown out.
Nassar, after complaining of harassment, left in 2006 for another job at Parkland Hospital, but the hospital withdrew its job offer after one of his former medical center supervisors opposed it.
Nassar sued, saying the medical center retaliated against him for his discrimination complaints by encouraging Parkland to take away his job offer. A jury awarded him more than $3 million in damages.
The medical center appealed, saying the judge told the jury it only had to find that retaliation was a motivating factor in the supervisor’s actions, called mixed motive. Instead, it said, the judge should have told the jury it had to find that discriminatory action wouldn’t have happened “but-for” the supervisor’s desire to retaliate for liability to attach.
Justice Anthony Kennedy, who wrote the majority opinion, agreed with the lower court and the university, saying people “must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.” He didn’t rule completely for the medical center, sending the case back to the lower courts after saying a decision “is better suited by courts closer to the facts of this case.”
Karen Harned, the executive director of the National Federation of Independent Business’ Small Business Legal Center, cheered the decision.
“If courts were allowed to label employees with little managerial authority as ‘supervisors,’ that would have substantially increased the number of frivolous lawsuits brought against small businesses and would have done little, if anything, to reduce harassment,” she said.
IN THE SECOND CASE, Maetta Vance, a catering specialist at Ball State University, accused co-worker Shaundra Davis of racial harassment and retaliation in 2005.
Vance sued the school under the Civil Rights Act of 1964, saying it was liable because Davis was her supervisor. A federal judge threw out her lawsuit, saying that because Davis could not fire Vance, she was only a co-worker, and because the university had taken corrective action, it was not liable for Davis’ actions.
Justice Samuel Alito, who wrote the majority opinion, said that for the university to be liable, Davis must have had the authority to “hire, fire, demote, promote, transfer, or discipline” Vance.
“Because there is no evidence that BSU empowered Davis to take any tangible employment actions against Vance, the judgment of the Seventh Circuit is affirmed,” Alito wrote.
Alito shook his head as Ginsburg read her dissent of his opinion. “The court’s disregard for the realities of the workplace means that many victims of workplace harassment will have no effective remedy,” she said.
Alliance for Justice President Nan Aron said the court made the wrong decision.
“Deferring to the powerful at the expense of the powerless, the Supreme Court majority has imposed a heavier burden for victims of workplace harassment and discrimination seeking justice in our courts,” Aron said.
Ginsburg said she hopes Congress intervenes in both cases.
For example, President Barack Obama in 2009 signed the Lilly Ledbetter Fair Pay Act, which effectively overturned a Supreme Court decision that had strictly limited workers’ ability to file lawsuits over pay inequity.
“Today, the ball again lies in Congress’ court to correct this court’s wayward interpretations of Title VII,” she said.
Ginsburg’s call was soon joined by other organizations.
“The rulings are a step backwards in our efforts to ensure equal economic opportunity and to fulfill the promise of Title VII of the Civil Rights Act of 1964,” said Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, Inc. “We call on Congress to once again take action to correct the court’s flawed and narrow interpretations of Title VII, just as Congress has done repeatedly in the past.”