Monday, June 24, 2013
The Supreme Court handed down opinions in two Title VII cases today, both of which will benefit employers. You should read both cases because they are really interesting. I'll just offer a general overview here.
First was Vance v. Ball State. In Vance, the Court considered who would be a supervisor for purposes of vicarious employer liability under Title VII. It held that only those employees empowered to take tangible employment action would be supervisors. Other employees with some supervisory authority are "merely" co-employees even if they are labeled supervisors by the employer. And an employer is liable for harassment by coworkers only if the employer is negligent in allowing the harassment to happen. The negligence inquiry must take into account the degree of authority and control the harasser had, and the greater the amount, the more likely the employer may be found negligent, as long as it also had constructive notice of that harassment. Thus, the Court reaffirmed the agency principles it had adopted in Farragher and Ellerth.
The second case was University of Texas Southwestern Medical Center v. Nasser. That case involved the causation standard for retaliation cases under Title VII. The Court held that plaintiffs had to prove that retaliation was the but-for cause of the adverse employment action taken against them, using the reasoning we are familiar with from Gross v. FBL Fin. Servs. The Court presumed that Congress incorporated the general tort causation standard in Title VII when it enacted the law, and the 1991 amendments which adopted the motivating factor standard used it in connection with discrimination on the basis of protected status and did not mention the word retaliation. The Court further relied on its decision in Gross, holding that if "because" meant but-for there, it must mean but-for in the retaliation context. Although the Court had previously held in Price Waterhouse that "because" could mean motivating factor or substantial factor, it said in this case that decision had no continuing effect. Congress essentially erased Price Waterhouse with the Civil Rights Act of 1991.
In both decisions, the Court rejected interpretations provided by the EEOC as unpersuasive, giving them no deference. Both decisions were decided 5-4, and Justice Ginsburg wrote the dissents for both. In both cases, Justice Ginsburg charged the majority with ignoring the realities of the workplace--the conditions under which people work--and of narrowing Title VII's protection well beyond what Congress had intended. She called on Congress to remedy both decisions.
My impression on reading both cases is that the decisions read as fairly instrumental, adopting highly technical statutory readings only when convenient and playing somewhat loose with prior precedent and lower court decisions. Clearly, the majority views Title VII cases as a problem for employers, a problem Congress must not have intended to cause, and a problem that the Court has to fix. I'm not sure that Justice Ginsburg's solution is workable, either. In the current climate, I would be surprised if Congress could do anything. And, it seems, no matter what Congress does, it seems that the Court has its own picture of what Congress should do. That motivated reasoning would be difficult to overcome even if the statute is amended. Consider what the Court did with the 1991 amendments. Instead of codifying the reasoning behind the causation analysis from Price Waterhouse, something Congress must have believed it was doing, those amendments were considered by the Court to have erased it completely.