June 26th, 2013
Employers Rejoice: Two 2013 SCOTUS Decisions Shaft Workers
The U.S. Supreme Court (SCOTUS) is done for the year. Decisions have been rendered. The court gutted the civil rights movement by neutering the Voting Rights Act (Shame on them!) . The court granted LGBT proponents unprecedented rights (Yea!). Two decisions regarding employment law clearly sided with employers and once again stuck it to working men and women.
Case #1: Retaliation Changed to Suit Employer Defendants
In the Univ of Texas v. Nassar (No 12-484), SCOTUS (in a 5-4 vote on June 24, 2013) limits retaliation claims to situations in which the plaintiff can show that the the only employer motivating factor is the desire to retaliate. Justice Kennedy opined that there are two standards — lessened causation and but-for. In cases where the practice of retaliation was motivated by several factors, one of which was race, color, religion, sex or national origin, lessened causation applies. In reality, many factors do apply. The Court called these “mixed-motive” cases.
In this case, a woman supervisor at the University of Texas Medical School, Beth Levine, MD (pictured on the left), harassed Naiel Nassar, MD, a physician of Middle Eastern descent. Nassar was working at Parkland Memorial Hospital in Dallas and was an Associate Professor at the UT Southwestern Medical Center. In 2004, he inherited a new department head, Levine, known to comment “MiddleEasterners are lazy.” He was promised a post at the hospital even after he resigned his academic job. Nassar’s resignation letter cited Levine’s harassment as the reason. A Dr. Fitz who received the Nassar resignation letter felt he had to defend and exonerate his colleague Levine. Fitz convinced the hospital to withdraw its job offer to Nassar. Nassar filed two claims — discrimination by Levine and retaliation by the University that cost him his hospital position.
The five conservative justices actually stated that the lessening causation standard “could contribute to the filing of frivolous claims.” The opinion cites EEOC statistics about the “nearly doubled” frequency of retaliation claims in the past 15 years. They equate retaliation claims with baseless claims. They seem motivated, on behalf of corporations against which these retaliation claims are filed, to reduce those numbers that bother corporate defendants.
The court wrestled with what is meant by the employer took the adverse action because of age. “Because of” becomes the “reason for” or “by reason of” and is the “but-for” cause. If age had not been the reason (but-for age), there would not have been an adverse action like retaliation. To require proof that only one factor was the cause and not others raises the threshold of proof for plaintiffs.
“The Court now concludes as follows: Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” (p. 20)
This means that SCOTUS has said that you cannot claim retaliation simply for filing a discrimination complaint. If you cannot prove the discrimination in the first place, then no retaliation can possibly exist.
Justice Ginsburg (pictured on right) wrote the dissenting opinion. She remarks that the ban on discrimination and the ban on retaliation against a discrimination complaint have long “traveled together.”
“the close connection between discrimination and retaliation for complaining about discrimination, this Court has held, in a line of decisions unbroken until today, that a ban on discrimination encompasses retaliation.” (p.6)
According to Ginsburg and the other three dissenting justices, the section of the Title VII statute that the majority conservatives cite, was misread by them. In fact, the text refers to the broadest cause possible, “any employment practice.”
The EEOC has always interpreted retaliation in a broad fashion, allowing for multiple causes (the myriad of things employers do to punish those who file complaints reflecting reality). This interpretation of the law is in the EEOC guidance manual. The majority of justices said the manual is wrong and negates years of EEOC instruction to the public.
Dissenting justices took issue with the majority’s definition of “because,” claiming that there is near universal agreement that the but-for standard is inappropriate when multiple sufficient causes exist.
Existing American tort law states that when two forces create an injury each alone would be sufficient to cause (“overdetermined” cases), plaintiffs are permitted to show that either factor could have created the harm. But the new SCOTUS ruling forbids a Title VII plaintiff from alleging retaliation by an employer if the firing (or adverse employment action) is prompted by BOTH discriminatory and non-discriminatory factors.
Ginsburg worries also about the practical problems of judges having to instruct juries on the new standard and of jurors being capable of distinguishing motives of employers regarding the charge of discrimination separate from the retaliation charge.
Ginsburg concludes: “the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers.”
Case #2: “Supervisor” Redefined to Keep Employers Out of Court
In the case Maetta Vance v. Ball State University (No. 11-556, a 5-4 decision on June 24, 2013), the five conservative justice majority, with Justice Alito writing the opinion, said
“an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is “empowered” by the employer “to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such a hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”
A detailed background to the case was written on this WBI Blog on Dec. 2, 2012.
Saundra Davis was a lead worker who Vance accused of racial discrimination. The employer said that it was not liable (since 1998, employers have vicarious liability for adverse actions of supervisors such as violations of antidiscrimination laws). The trial and appellate courts agreed. Vance took her case to the Supreme Court.
Discrimination from a coworker requires the complainant to prove that the employer was negligent. The employer has to know or reasonably should have known about the harassment and failed to take remedial action. Ball State said it was not negligent. The lower courts agreed.
The appellate court standard for defining “supervisor” had been an employee with “the power to hire, fire, demote, promote, transfer or discipline” another employee. So, it concluded that Davis was not Vance’s supervisor and Ball State was not liable for Davis’ misconduct.
The EEOC uses a broad definition of supervisor. The SCOTUS majority railed over many pages about the “remarkable ambiguity” of the EEOC. They seem hell- bent on discrediting the EEOC, the lone federal agency tasked with holding employers accountable for upholding anti-discrimination laws.
Here’s one of the assumptions the Alito-led majority of justices believe taken straight from the opinion: “The definition adopted today accounts for the fact that many modern organizations have abandoned a hierarchical management structure.”
And as Justice Thomas wrote in a 50-word concurring statement, the majority opinion “provides the narrowest and most workable rule for when an employer may be held vicariously liable for an employee’s harassment.” He sure makes his role on SCOTUS perfectly clear.
The dissenting opinion was written by Justice Ginsburg. She wrote: “the appropriate question is: Has the employer given the alleged harasser authority to take tangible employment actions or to control the conditions under which subordinates do their daily work? If the answer to either inquiry is yes, vicarious liability is in order, for the superior-subordinate working arrangement facilitating the harassment is of the employer’s making.”
Her criticism continues with “Exhibiting remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC’s Guidance, the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ.”
Ginsburg’s strong conclusion:
Inevitably, the Court’s definition of supervisor will hinder efforts to stamp out discrimination in the workplace. Because supervisors are comparatively few, and employees are many, “the employer has a greater opportunity to guard against misconduct by supervisors than by common workers,” and a greater incentive to “screen [supervisors], train them, and monitor their performance.” Faragher, 524 U. S., at 803. Vicarious liability for employers serves this end. When employers know they will be answerable for the injuries a harassing jobsite boss inflicts, their incentive to provide preventative instruction is heightened. If vicarious liability is confined to supervisors formally empowered to take tangible employment actions, however, employers will have a diminished incentive to train those who control their subordinates’ work activities and schedules, i.e., the supervisors who “actually interact” with employees.
Tags: antidiscrimination laws, Ball State, discrimination, dissenting opinion, employer responsibility, Justice Kennedy, Justice Ruth Bader Ginsburg, Nassar, retaliation, supervisor defined, Title VII, University of Texas, US Supreme Court, Vance, vicarious liability
This entry was posted on Wednesday, June 26th, 2013 at 3:26 pm and is filed under Fairness & Social Justice Denied, Rulings by Courts, Tutorials About Bullying, WBI Education, Workplace Bullying Laws. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.