(Washington, D.C.) Today the Supreme Court set back enforcement of our nation’s key federal safeguard against racial harassment, discrimination, and retaliation in the workplace. The Court’s decisions in University of Texas Southwestern Medical Center v. Nassar and Vance v. Ball State University were both closely decided 5-4 rulings. The rulings are a step backwards in our efforts to ensure equal economic opportunity and to fulfill the promise of Title VII of the Civil Rights Act of 1964. We call on Congress to once again take action to correct the Court’s flawed and narrow interpretations of Title VII, just as Congress has done repeatedly in the past. To that end, Justice Ginsburg, wrote that the majority’s judgments in Nassar and Vance “should prompt yet another Civil Rights Restoration Act.”
In the first case, Dr. Naiel Nassar, who is of Middle Eastern descent, alleges that the University of Texas Southwestern Medical Center blocked him from getting a new job. According to Dr. Nassar, the Medical Center did this in retaliation after he complained that his supervisor discriminated against him based on his race and ethnicity. The U.S. Equal Employment Opportunity Commission found “credible, testimonial evidence” that the Medical Center retaliated against Dr. Nassar, and a jury of his peers found that the University violated the anti-retaliation provision of Title VII. The U.S. Court of Appeals for the Fifth Circuit upheld the verdict.
Today the Supreme Court overturned the decisions of the district and appellate courts, and the Equal Employment Opportunity Commission. Instead of applying the same standard of proof that is used for race and gender discrimination claims, the Court adopted a more stringent standard for retaliation, which Justice Ginsburg, in her dissenting opinion, recognized “lacks sensitivity to the realities of life at work.” For race and gender discrimination, Title VII rightly requires an employee to show only that race or gender was one of multiple “motivating” reasons for the employer’s decision-making. For a claim of retaliation, the Court ruled that the employee must show that the employer would not made the decision “but for” its improper retaliatory motive.
We are disappointed that the Court has raised the burden of proof for retaliation claims. Strong safeguards against retaliation are critical to shield employees who protest discriminatory actions. Employers and supervisors should not have a free pass to target employees who courageously take a stand for fairness in the workplace. These protections particularly are important since the number of Equal Employment Opportunity Commission complaints has nearly doubled in the past 15 years from over 16,000 in 1997 to 31,000 in 2012.
The Court has sent this case back to the trial court to apply this more exacting standard to Dr. Nassar’s retaliation claim.
In the second case, the Court’s decision in Vance v. Ball State diminishes Title VII in a different way. Maetta Vance, the only African-American employee in the Ball State University kitchen, was exposed to racial slurs and veiled threats from Saundra Davis, the kitchen staff worker who gave Ms. Vance her daily work assignments.
The Court previously held that an employer is accountable under Title VII when one of its supervisors harasses an employee. But in Vance, the Court concluded that Ball State was not responsible for Davis’s discriminatory conduct because Davis did not fit the Court’s narrow definition of “supervisor.” The Court’s ruling also rejects the Equal Employment Opportunity Commission’s guidance regarding who is a supervisor. The Court determined that because Davis did not have the power to make certain formal employment decisions, such as hiring, firing, or promoting, she was not a “supervisor” under Title VII, despite the fact that she controlled and supervised Ms. Vance’s day-to-day activities. This decision will leave employees to fend for themselves when faced with harassment by supervisors who may not have the ability to fire workers, but do have the ability to harass them in the workplace.
We are disappointed that the Court endorsed this narrow definition of a supervisor. As in Nassar, the Court’s ruling in Vance is out of touch with the realities of today’s workplace. In the real world, a coworker who assigns work, even without hiring and firing responsibility, can use that authority to make another employee’s life miserable, or unsafe. When that hostility is because of race, the employer should be required either to fix the problem or be held accountable for workplace discrimination. That common sense standard incentivizes monitoring and training to ensure that workplaces are free from harassment based on race, gender, or other protected categories.
In recent years, Congress has needed to step in to counteract the Court’s undermining Title VII protections for workers – for example, in passing the Lily Ledbetter Fair Pay Act of 2009. As Justice Ginsburg noted in her dissent, “[t]he ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.”