Court makes it harder to sue for bias, retaliation

Justices split 5-4 on 2 cases; Ginsburg urges Congress to act, overturn rulings
2013-06-25T00:00:00Z Court makes it harder to sue for bias, retaliationThe Associated Press The Associated Press
June 25, 2013 12:00 am  • 

WASHINGTON - A sharply divided Supreme Court decided to make it harder for Americans to sue businesses for retaliation and discrimination, leading a justice to call for Congress to overturn the court's actions.

The court's conservatives, in two 5-4 decisions Monday, 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 discrimination in the nation's workplaces.

"Both decisions dilute the strength of Title VII in ways Congress could not have intended," said Ginsburg, who then 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 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."

In the second 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 U.S. Circuit Court of Appeals 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 purpose 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 7th Circuit is affirmed."

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," Ginsburg 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," she said. "This decision makes it far easier for employers to evade responsibility for discrimination and harassment in the workplace."

Alito, Kennedy, 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. For example, President 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.

Ginsburg's call for congressional action was soon joined by other organizations, including the NAACP Legal Defense and Educational Fund Inc.

Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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