Portside Date: June 24, 2013

Author: Warren Richey

Date of source: June 24, 2013

The Christian Science Monitor

The US Supreme Court handed down two important decisions Monday that will make it harder for workers to mount and win discrimination lawsuits against their employers.

In a pair of 5-to-4 decisions, the justices embraced a narrow definition of who qualifies as a supervisor for purposes of federal discrimination law, and the court endorsed a tough standard in cases where a worker claims to be the victim of retaliation after complaining of unlawful discrimination.

The majority justices said the narrow standards would be easier for courts to administer and that other safeguards were available to protect workers.

Justice Ruth Bader Ginsburg filed a dissent in both cases calling for Congress to overturn the decisions by passing new legislation.

“Congress has, in the recent past, intervened to correct this Court’s wayward interpretations of Title VII,” she wrote, referring to the passage of the Lilly Ledbetter Act in 2009 overturning a 2007 high court decision.

“The ball is once again in Congress’ court to correct the error into which this Court has fallen and to restore the robust protections against workplace harassment the Court weakens today,” she said.

“The winner today, as in most days in the recent past, is business,” Mark Graber, a law professor at the University of Maryland, said in a statement.

He said the decisions will help insulate businesses from liability in workplace discrimination and retaliation lawsuits.

Both cases were decided by the same 5-to-4 conservative-liberal split among the justices.

The retaliation decision was written by Justice Anthony Kennedy.

It stems from the case of Naiel Nassar, a physician and faculty member at the University of Texas Southwestern Medical Center. Dr. Nassar is of Middle Eastern heritage and complained that one of his supervisors was biased against him because of his religion and ethnic heritage.

He eventually resigned from his teaching position but arranged to keep working at the Medical Center. After resigning, Nassar sent letters to his former supervisors and colleagues stating that he was leaving because of harassment.

Angry at the letter, one of the supervisors contacted the Medical Center, which then withdrew Nassar’s job offer.

Nassar sued, accusing the supervisor of engaging in illegal retaliation tied to his earlier complaints about bias by a different supervisor.

The question in the case was whether the lower courts applied the correct standard for proving a case of illegal retaliation.

The lower courts applied a broad standard that held that Nassar could win his case as long as he could prove that retaliation was a motivating factor [among other factors] for the adverse employment action.

The jury found for Nassar, awarding him $400,000 in back pay and more than $3 million in compensatory damages. The $3 million award was later reduced to $300,000.

An appeals court upheld the lower court’s use of the broader, motivating-factor standard.

In their appeal to the Supreme Court, lawyers for the Medical Center argued that the lower courts should have applied a tougher standard. They said Nassar should have been required to show that he lost his job at the Medical Center because of his supervisor’s illegal retaliation.

On Monday, the high court agreed with the Medical Center that the tougher standard is required.

“The text, structure, and history of Title VII [of the Civil Rights Act of 1964] demonstrates that a plaintiff making a retaliation claim under [federal civil rights law] must establish that his or her [allegation of discrimination was the cause] of the alleged adverse action by the employer,” Justice Kennedy wrote.

“The University claims that a fair application of this standard, which is more demanding than the motivating-factor standard adopted by the Court of Appeals, entitles it to judgment as a matter of law,” he said.

Kennedy said that question would be better resolved by the lower courts that handled the case.

The Supreme Court vacated the earlier appeals court decision that upheld the lower court, and remanded the case for further action under the clarified standard.

The case was University of Texas Southwestern Medical Center v. Naiel Nassar (12-484).

The decision in the second case was written by Justice Samuel Alito. The issue in that case was how to determine who qualifies as a supervisor in the workplace for purposes of a federal discrimination lawsuit.

The issue is important in Title VII litigation because if a supervisor is involved in acts of harassment or discrimination the entire company or organization can be held legally responsible. In contrast, illegal harassment or discrimination by a co-worker generally will not trigger liability for the entire company.

The question was whether “supervisors” should be limited to those with the power to hire, fire, promote, and demote, or whether the definition should be broadened to include anyone who supervises the day-to-day activities of a worker or group of workers.

In its decision on Monday, the high court established a narrow definition for who qualifies as a supervisor.

“We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim,” Justice Alito wrote.

Such tangible employment actions include decisions that cause a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

“We reject the nebulous definition of a ‘supervisor’ advocated in the [Equal Employment Opportunity Commission] Guidance and substantially adopted by several courts of appeals,” he said.

Analysts say the ruling will make it harder for plaintiffs to file and win such lawsuits.

The decision embraces the same narrow definition that has been enforced by three federal courts of appeal in Chicago, Boston, and St. Louis. It rejected a broader definition adopted by appeals courts in New York, Richmond, and San Francisco.

Something more than supervision is required to warrant vicarious liability by the company, Alito said in the majority decision.

“The ability to direct another employee’s tasks is simply not sufficient,” he said. “Employees with such powers are certainly capable of creating intolerable work environments, but so are many other co-workers.”

Alito said laws against negligence would protect workers from co-worker harassment. “Assuming that a harasser is not a supervisor, a plaintiff could still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place,” Alito wrote.

“Evidence that an employer did not monitor the workplace, failed to respond to complaints, or effectively discouraged complaints from being filed would be relevant,” he said.

The decision stems from a lawsuit brought on behalf of a food service worker, Maetta Vance, who filed a hostile environment and retaliation complaint against her employer, Ball State University in Muncie, Indiana, for alleged harassing and discriminatory actions in the food service department.

Vance was the only African-American employee in the department. The person assigned to direct Vance’s work had once allegedly assaulted her and sometimes referred to her as “Buckwheat” and “Sambo.” Another employee of the department used the “N” word to refer to Vance and African-American students at the school. She also boasted of family connections to the Ku Klux Klan.

Vance lived and worked in a state of fear, according to court papers. She sought psychiatric care for anxiety and sleeplessness. She reported the situation to the department general manager, who promised to investigate. Little was done, according to Vance’s lawyers.

Vance sued. Ball State defended the suit by arguing that the two individuals accused of discrimination were Vance’s co-workers, and disputed that one was a “supervisor.”

A federal judge agreed and dismissed the lawsuit against the university. The Seventh US Circuit Court of Appeals affirmed, applying the circuit’s narrow definition that a “supervisor” is only someone empowered to hire, fire, or demote an employee.

In affirming that standard, Justice Alito said the narrow standard would be easier to administer than a broader, murkier standard.

“The interpretation of the concept of a supervisor that we adopt today is one that can be readily applied,” he said. 

In her dissent, Justice Ginsburg accused the majority of ignoring workplace realities. “Trumpeting the virtues of simplicity and administrability, the Court restricts supervisor status to those with power to take tangible employment actions,” she wrote.

“In so restricting the definition of supervisor, the Court once again shuts from sight the robust protection against workplace discrimination Congress intended Title VII to secure,” she said.

The case was Maetta Vance v. Ball State University (11-556).