(Washington, D.C.)  Today, the Supreme Court handed down its decisions in two Title VII cases, Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar, limiting the protections available to employees in both cases in narrow 5-4 votes.

In Vance, the Court ruled, in a decision written by Justice Alito, that an employer is not vicariously liable for harassment by a plaintiff’s immediate or day-to-day supervisor if that supervisor did not have the ability to hire her, fire her, or otherwise take tangible employment action against her. In dissent, Justice Ginsburg sharply criticized the majority for ignoring the realities of the workplace and the ways in which day-to-day supervisors have been invested with authority over employees that empower them to harass; the dissent urged Congress to act to correct the Court’s decision.

In Nassar, in an opinion written by Justice Kennedy, the Court held that plaintiffs must satisfy a different, and more difficult, standard for proving retaliation for complaining about discrimination than for proving the discrimination itself.  This important decision makes it more difficult for women and minorities to guard against unlawful retaliation at work. Justice Ginsburg also dissented in Nassar, taking the majority to task for ignoring guidance by the Equal Employment Opportunity Commission (EEOC) and its prior precedent to drive a “wedge” between the mutually reinforcing remedies against discrimination and complaining about discrimination. The Nassar dissent also urged Congress to take corrective action in response to the majority’s decision.

Marcia D. Greenberger, Co-President of the National Women’s Law Center (NWLC), issued the following statement:

“Today’s decisions ignore the realities of the workplace and the ways in which discrimination and harassment play out every day.  They place substantial new obstacles in the way of employees seeking to vindicate their rights to be free from discrimination and retaliation, ignoring Title VII’s purpose and intent of providing effective protection for workers. 

Vance provided a critical opportunity for the Supreme Court to make clear that Title VII contains real protection for women and minorities who face harassment on the job, which remains a serious problem in workplaces across America.  Unfortunately, this decision ignored the power that a direct supervisor wields over an employee, whether or not that supervisor has the formal authority to hire or fire or otherwise take tangible employment actions against the employee.  The Court failed to acknowledge that when the employer has invested a direct supervisor with authority, when that supervisor misuses his or her authority to harass a subordinate, the employer should be held liable for the supervisor’s actions.

“In Nassar, the majority limited Title VII’s prohibitions on discrimination and retaliation in a way that, as Justice Ginsburg’s dissent put it, ‘lacks sensitivity to the realities of life at work.’  As a long line of the Court’s prior cases have established, protections against retaliation for complaining about discrimination are part and parcel of protections against the underlying discrimination.

“Congress made clear its intent regarding Title VII’s twin antidiscrimination protections over twenty years ago by passing the Civil Rights Act of 1991, which stated plainly that employers violate Title VII when race, color, religion, sex, or national origin is one of many reasons for a discriminatory employment practice.  This test importantly recognized the complexity of employment decisions, which often result from a combination of legitimate and improper reasons. 

“Today’s decision in Nassar frustrates Congress’ intent by creating a different, and more difficult, standard of proof for claims of retaliation for complaining about discrimination than for claims of discrimination. As Justice Ginsburg’s dissent pointed out, this ruling will likely prove confusing for courts and juries and is contrary to both the EEOC’s longstanding interpretation of the standard and the Court’s prior precedents.”

The Center  joined an amicus brief in the Vance case, arguing that the Seventh Circuit’s narrow definition of “supervisor” is contrary to Supreme Court precedent and the ordinary meaning of the word and that the limited view of who constitutes a supervisor ignores the realities of workplace harassment and the intent of Title VII.  The brief is available at http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/11-556_petitioneramcunpwf.authcheckdam.pdf.

And it joined an amicus brief in Nassar arguing that the “motivating factor” test is the appropriate causation standard for Title VII retaliation claims and that demanding “but for” causation ignores the clear purpose of Title VII and the realities of how employment decisions are made.  The brief is available at http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-484_resp_amcu_nela-etal.pdf.



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