WASHINGTON (AP) - A sharply-divided Supreme Court on Monday made it more
difficult for Americans to sue businesses for discrimination and
retaliation, leading a justice to call for Congress to overturn the court’s
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
coworker’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, who wrote both dissents for the court’s liberal
wing and in a rare move read one aloud in the courtroom, said the high court
had “corralled Title VII,” a law designed to stop discrimination in the
“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, Maetta Vance, who was a catering specialist at Ball State
University, accused a co-worker, Shaundra Davis, of racial harassment and
retaliation in 2005. Vance sued the school under the Civil Rights Act of
1964, saying the university was liable since Davis was her supervisor. But a
federal judge threw out her lawsuit, saying that since Davis could not fire
Vance, she was only a co-worker, and since the university had taken
corrective action, it was not liable for Davis’ actions. The 7th Circuit
upheld that decision, and Vance appealed to the Supreme Court.
But Justice Samuel Alito, who wrote the majority opinion, said for the
university to be liable, Davis must have had the authority to “hire, fire,
demote, promote, transfer, or discipline” Vance.
“We hold that an employee is a ‘supervisor’ for purposed of vicarious
liability under Title VII if he or she is empowered by the employer to take
tangible employment actions against the victim,” Alito said. “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.”
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 heavier burden for victims of workplace
harassment and discrimination seeking justice in our courts,” she said.
“This decision makes it far easier for employers to evade responsibility for
discrimination and harassment in the workplace.”
In the second case, the University of Texas Southwestern Medical Center
wanted a discrimination lawsuit won by Dr. Naiel Nassar thrown out. Nassar
left in 2006 after complaining of harassment, but Parkland Hospital withdrew
its job offer after one of his former 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 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.”
But he didn’t rule completely for the medical center, sending the case back
to the lower courts after saying a decision on the resolution of the case
“is better suited by courts closer to the facts of this case.”
Karen Harned, 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. “For small businesses,
the increased possibility of liability and ensuing costs would have been
devastating. We are very pleased with the Supreme Court’s decision.”
Kennedy, Alito, Chief Justice John Roberts, and Justices Antonin Scalia and
Clarence Thomas voted together in those cases.
Ginsburg, and Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan
dissented together both times.
Ginsburg said she hopes Congress intervenes in both cases, just as it did in
past Title VII cases. “Today, the ball again lies in Congress’ court to
correct this court’s wayward interpretations of Title VII,” she said.
In other actions, the court:
- Announced that it would issue additional opinions on Tuesday as it begins
to wrap up its work for the summer. Justices still have not decided major
cases involving gay marriage and the Voting Rights Act.
- Decided to reconsider the constitutionality of a 2007 Massachusetts law
that bars protests in 35-foot “buffer zones” around abortion clinic
entrances, exits and driveways.
- Agreed to review a federal appeals court decision that found President
Barack Obama violated the Constitution when he bypassed the Senate last year
to appoint three members of the National Labor Relations Board.
- Rejected challenges to Environmental Protection Agency decisions allowing
an increase in ethanol content in gasoline.
- Ruled generic drug manufacturers can’t be sued in state court for a drug’s
design defects if federal officials approved the brand-name version the
generic drug copied.
- Ruled that a convicted military sex offender who completed his sentence
can be prosecuted for not updating his whereabouts in a federal sex offender
database, even though that law was passed after he finished serving his
sentence and was discharged from the military.