Trey Dayes: The Supreme Court is not very employee friendly

The SCOTUS Decisions Every Employee Should Be Talking About
by Allan A. Ryan | 5:08 PM July 1, 2013
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The U.S. Supreme Court in recent years has often ruled in favor of employers in disputes brought by employees, and in the hectic final week of this year’s term the Court issued two little-noticed rulings that continue that tack. Both decisions, by identical 5-4 majorities in which Justice Kennedy joined with the conservative wing of the Court, impose procedural requirements that will make it harder for some employees to prevail in cases of employment discrimination.

The first case, Vance v. Ball State University, decided the issue of whether a non-managerial employee with some modest supervisory responsibilities should be treated as a co-worker or as a supervisor in a workplace harassment case. Historically, a supervisor’s racial (or religious or ethnic or gender-based) discrimination is directly attributable to the employer — so if a supervisor’s racially-based harassment or job decisions create a hostile work environment, the employer is liable. If a co-worker discriminates, however, the employer is liable only if it was negligent in allowing the discrimination to take place, or by failing to take effective steps to protect the victim.

The Court, in an opinion written by Justice Alito, rejected the plaintiff’s claim (supported by the EEOC’s regulations) that the definition of “supervisor” should be flexible, based on the facts of each case, and determined by the extent of the alleged harasser’s authority to assign specific workplace tasks, direct the plaintiff’s performance of those tasks, and generally oversee the workplace. Instead, the Court adopted a stricter definition: A supervisor, for purposes of the employer’s liability, is someone who has the authority to effect a “significant change in employment status,” such as firing or refusing to promote an employee, reassigning her to significantly different responsibilities, or changing substantial benefits.

This is especially interesting given today’s managerial and consulting environment, where shifting responsibilities abound. Take this passing observation by Justice Alito, where he addresses this managerial gray area: “Particularly in modern organizations that have abandoned a highly hierarchical management structure, it is common for employees to have overlapping authority with respect to the assignment of work tasks. Members of a team may each have the responsibility for taking the lead with respect to a particular aspect of the work and thus may have the responsibility to direct each other in that area of responsibility.” In this environment, basing discrimination decisions on case-by-case determinations of whether the defendant has enough supervisory authority would be difficult to apply. By voting for a black-and-white test — does this person have authority to hire and fire, or not? — Alito hoped to help lower courts avoid this sort of uncertainty.

In second case, University of Texas Southwestern Medical Center v. Nassar, Dr. Nassar, a Muslim of Arab descent on the University’s faculty , claimed that his department chair blocked his re-appointment to the staff of an affiliated hospital in retaliation for Dr. Nassar’s accusation that an intermediate university supervisor was prejudiced against Arab Muslims. The case went to trial, and a jury found in Dr. Nassar’s favor, awarding him $3,000,000 in damages (later reduced by the trial court to $300,000).

Before detailing the SCOTUS decision, some historical background: Title VII of the Civil Rights Act of 1964 prohibits not only employment discrimination based on status (race, color , religion, sex, or national origin), but also retaliation against any employee who brings a complaint based on that status, whatever the merits of the underlying claim may prove to be. The issue of causality — what the complainant must prove in court to establish the causal link between his status or action and the forbidden discrimination or retaliation — had proven troublesome. So in 1991, Congress amended Title VII to make clear that an employee complaining of status discrimination need not prove that his status (race, ethnicity, or whatever) was the sole motivating cause of the discrimination, but only that it was a “motivating factor” for a decision in which other factors may also have been at work. In doing so, however, Congress said nothing about whether that lesser burden of proof applied also to claims of retaliation. The issue before the Court was whether it did apply.

Dr. Nassar argued that it did, and that he therefore need not prove that he would have been re-appointed absent racial or ethnic discrimination; he should prevail if discrimination was a “motivating factor” in the decision, even if not the sole one. The Court rejected his argument, ruling in favor of the university. Justice Kennedy, writing for the majority, relied primarily on the fact that Congress had lessened the burden on employees only in the section of the law that prohibited discrimination based on status, and not in the separate section that prohibited retaliation. Title VII is a “precise, complex and exhaustive” statute barring discrimination, he wrote, and the Court should not infer that Congress meant to amend the allocation of burdens of persuasion in retaliation cases if it did not specifically say so. He goes on to say that the Court cannot infer “that every reference to race, color, creed, sex, or nationality in an antidiscrimination statute is to be treated as a synonym for ‘retaliation.'” Dr. Nassar now appears to face the prospect of a new trial, and if he is to prevail again he must prove that retaliation was the sole reason he was not appointed.

In each case, Justice Ginsburg, writing for the four dissenters, criticized the majority’s opinion as ill-advised, contrary to EEOC guidance, and needlessly burdensome for victims of employment discrimination or retaliation.

While employers (and especially their lawyers) will welcome these decisions, it is important to keep in mind that neither decision actually softens the long-standing federal prohibition on employment discrimination or on retaliation against those who bring such claims. In the Vance case, the Court moved an amorphous group of non-managerial supervisors into the co-worker cohort, requiring victims of harassment to prove negligence on the part of the employer – a step employees need not take if the harasser is a supervisor with power to hire, fire, or transfer. One question the Court did not answer, however, is whether a non-managerial supervisor whose recommendations for promotions and other job actions are so conclusive that a higher-up need only formally sign off on the paperwork would still be considered a mere co-worker, in the Court’s construct.

And in Dr. Nassar’s case, the Court stiffened the requirements necessary to prove retaliation — but that ruling does not affect claims of discrimination based on race, color, religion, national origin or sex. And Congress, as it did in 1991, is free to amend Title VII, this time to make clear that retaliation claims must henceforth also proceed on the more employee-friendly standard. Labor and employee groups will likely mount such an effort. Whether this Congress is willing to go along, however, is a very debatable question.

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