You may have missed it in the flurry of news-making by the Supreme Court this week, but on Monday, five of the Justices gave early Christmas presents to defendants accused of employment discrimination, when the Court handed down important decisions in two Title VII cases: Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar. In both Vance and Nassar, the 5-4 decisions ignored the realities of the workplace and the ways in which employment discrimination and harassment play out every day. Placing new obstacles in the path of workers seeking to vindicate their rights, the Court set aside the longstanding interpretations of the Equal Employment Opportunity Commission (the agency charged with enforcing Title VII), and closed out a term in which the Court repeatedly limited the ability of individuals to challenge the actions of powerful corporations.
Justice Alito wrote the Vance decision. Prior cases have held that when a plaintiff shows she was sexually harassed, or racially harassed, or harassed on some other unlawful basis by a supervisor, her employer is liable, unless the employer can prove that the plaintiff unreasonably failed to take advantage of a process that the employer provided for addressing harassment. An employer is only liable for harassment by a co-worker, however, when a plaintiff can show that the employer was negligent in controlling working conditions — a far tougher standard. Vance posed the question of who is a supervisor: Is it only someone who has the authority to hire, fire, or take other tangible employment actions? Or is it anyone who oversees and directs the plaintiff’s work on a day-to-day basis? Ignoring the ways in which day-to-day supervisors have been invested with authority over other employees that empowers them to harass, the Court ruled on Monday that employers are not vicariously liable for harassment by day-to-day supervisors who do not have the authority to hire, fire, and the like. Indeed, showing even more solicitousness for the interests of employers than the defendant in the case had shown for itself, the majority adopted an even narrower interpretation of the word “supervisor” than had been urged by Ball State.
Writing in dissent, Justice Ginsburg cataloged the ways in which the Court’s decision turned a blind eye to the realities of the workplace. She recounted the stories set out in lower court decisions of woman after woman who had experienced grotesque sexual harassment at the hands of supervisors who did not have authority to hire or fire, but who, “[a]s anyone with work experience would immediately grasp,” did wield significant employer-conferred workplace authority over their victims. “Each man’s discriminatory harassment,” she continued, “derived force from, and was facilitated by, the control reins he held,” making it appropriate to hold the employer who gave the supervisor this control responsible for the harassment. In response, the majority essentially shrugged, stating, “We are skeptical that there are a great number of such cases,” but noting that in any case, its definition of “supervisor” would be easy for courts to apply.
In Nassar, the same five-Justice majority again read Title VII with an eye toward protecting the interests of employers, this time in a decision by Justice Kennedy. A long line of the Court’s prior cases have established that protections against retaliation for complaining about discrimination are part and parcel of protections against discrimination itself. Nevertheless, in Nassar, the Court held that plaintiffs must satisfy a different, and more difficult, standard for proving retaliation for complaining about discrimination. Over twenty years ago, in the Civil Rights Act of 1991, Congress made clear that employers violate Title VII when race, color, religion, sex, or national origin is one of multiple reasons for taking action against an employee. This test recognized the complexity of employment decisions, which often result from a combination of legitimate reasons and improper motives. The Nassar decision drove a wedge between the mutually reinforcing remedies for discrimination and retaliation for complaining about discrimination, holding that in retaliation cases, and retaliation cases only, a plaintiff must prove not only that retaliation was one motive for the challenged action, but also that if it weren’t for the retaliatory motive, the employer would not have taken the action. Retaliation complaints against employers had rapidly increased over the last decade, the Court pointed out, taking it as self-evident that this was a good reason to make retaliation cases more difficult to prove. By making it harder for women and minorities to challenge unlawful retaliation at work, the Court frustrated Congress’ intent of providing robust protections for workers challenging discrimination.
As in Vance, Justice Ginsburg wrote a vigorous dissent, taking the majority to task for its strained reading of Title VII’s text and the Court’s own precedent, and criticizing its departure from the often affirmed principle that retaliation for complaining about discrimination is but another form of discrimination itself. According to multiple reports, when Justice Ginsburg read her Vance and Nasser dissents from the bench on Monday, Justice Alito theatrically rolled his eyes and shook his head. Unfortunately, the majority opinions in these cases showed a similar dismissive contempt for Congress’s intent in passing Title VII and the EEOC’s expertise in interpreting the statute.
Six years ago, when the same five-Justice majority made equal pay law essentially unenforceable in its decision in Ledbetter v. Goodyear Tire & Rubber Co., Justice Ginsburg also read a fiery dissent from the bench, calling upon Congress to act to remedy the injustice perpetrated by the Court. Congress listened to Justice Ginsburg and to the public outrage the decision provoked, passing the Lilly Ledbetter Fair Pay Act, which was the first bill signed into law by President Obama in 2009. On Monday, Justice Ginsburg again called upon Congress to correct the Court’s errors and restore Title VII. Indeed, in the case of Nassar, a vehicle already exists: the Protecting Older Workers Against Discrimination Act, first introduced in 2009, would explicitly state that the same standard of proof for proving discrimination under Title VII also applies to retaliation claims and to claims under other antidiscrimination statutes. Workers once must again insist that Congress step up and push back against the Court’s distortions of Title VII.