After last week’s decision in American Express v. Italian Colors Restaurant, I explained that the case was a classic example of the Roberts Court’s pro-business bent. On Monday, the Court issued two more. Both of these cases are Title VII cases, both were decided 5-4, and both will make successful litigation much harder for victims of discriminatory harassment (racial, sexual, etc.) or of retaliation for exercising their Title VII rights.
In Vance v. Ball State University, the Supreme Court addressed the question of “who is a supervisor” within the meaning of Title VII. (Title VII is the 1964 law that outlaws employment discrimination on the basis of race, religion, sex, national origin, or color.) If a supervisor harasses someone, it is easier for that person to win a Title VII suit than if the harassment is by a co-worker. (It is not impossible to win if the harasser is not a supervisor, but the employee must show that the employer was negligent, which is a tougher standard to meet than if the harasser is a supervisor.) The Supreme Court said that only a person with authority to make “tangible employment decisions” such as hiring, promotion, and termination, counts as a supervisor. A person who oversees someone’s day-to-day work assignments and sets her work schedule, as in Vance, is not a supervisor under this standard.
In University of Texas Southwestern Medical Center v. Nassar, the issue was what an employee has to show to establish that he or she was illegally retaliated against. In order to allow and encourage employees to assert their Title VII rights, Congress made it illegal for employers to retaliate against them for doing so. In Nassar, the Court decided that such an employee has to show that any adverse employment actions taken against them would not have occurred had they not asserted their rights. This is a more demanding standard than Title VII requires for establishing discrimination. There, the plaintiff need establish only that the discrimination was a motivating factor for the employer’s actions.
Like the American Express case, these cases sound very technical. But like the American Express case, the Court has given businesses road maps to insulate themselves from liability. After Vance, for example, an employer can make sure that no one with day-to-day contact with low-level employees makes final decisions about promotions and terminations.
Also like the American Express case, however, Congress has the power to override the Court’s rulings. Indeed, in announcing her dissents from the bench, Justice Ginsburg called on Congress to do just that. The current Congress is of course unlikely to do so, but if these and other cases become a rallying cry for Democrats or key constituent groups, as happened with after Ledbetter v. Goodyear Tire, congressional action is not implausible.