SCOTUS rules for employers in bias and retaliation cases; Ginsburg says ball is in Congress’ court

U.S. Supreme Court

SCOTUS rules for employers in bias and retaliation cases; Ginsburg says ball is in Congress’ court

Jun 24, 2013, 05:10 pm CDT

Justice Ruth Bader Ginsburg says it’s up to Congress to overturn two rulings on Monday that favor employers in cases alleging bias and retaliation.

“Both decisions dilute the strength of Title VII in ways Congress could not have intended,” Ginsburg said in a bench statement reported by SCOTUSblog. “Today, the ball again lies in Congress’ court to correct this court’s wayward interpretations of Title VII.”

In Vance v. Ball State University, the court ruled 5-4 against an African-American catering employee at the school who claimed a co-worker had slapped her, threatened her and used racial epithets. The plaintiff, Maetta Vance, said the co-worker had the authority to direct her work and qualified as a supervisor, making the university vicariously liable for a hostile work environment.

If the co-worker was not a supervisor, the university could not be liable unless it was negligent in controlling working conditions. Vance had argued a co-worker can be a supervisor even absent the power to hire and fire.

Justice Samuel A. Alito Jr. disagreed in the court’s majority decision (PDF). An employee is a supervisor only when the employer has “empowered that employee to take tangible employment actions against the victim,” he wrote.

The court also split 5-4 in the second case, University of Texas Southwestern Medical Center v. Nassar. The majority opinion (PDF) by Justice Anthony M. Kennedy said plaintiffs in retaliation cases must satisfy a standard of “but-for causation.” That means the plaintiff “must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.”

The lawyer for the plaintiff, Dr. Naiel Nassar, had argued that his client need only show that retaliation was a motivating factor, the standard used in other Title VII claims for bias. Nassar had claimed his hospital employer blocked a job opportunity at an AIDS clinic job because of his prior complaints about a supervisor’s discriminatory remarks about his religion and ethnic heritage.

Ginsburg issued a similar plea for congressional action when the Supreme Court ruled in 2007 against Lilly Ledbetter’s pay bias claim on statute of limitation grounds, SCOTUSblog notes. Congress responded with a new law overriding the decision.

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