Monday, June 24, 2013

Two Big Employer Title VII Wins at the Supreme Court Today

ScotusThe 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.


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I have to say, what chaps me about these decisions is not so much the results, which are irritating but not the end of the world. Causation standards in particular have always struck me as angels dancing on the head of a pin. Sure, some judges will seize on the opinion to provide sound bites for ludicrous summary judgment grants, but (to be blunt) those judges were going to grant those summary judgment motions anyway, so giving them a slightly broader universe of inapposite language to cherrypick from isn't going to change much.

No, what I find truly obnoxious about these decisions is how disingenuous they are. This court has developed a couple of really nasty habits, and one of them-- on full display here-- is its love for the bait and switch. Just a few years ago, the Court justified Gross on the basis that Title VII causation analysis did not apply to the (nearly identical) ADEA because it was a different statute. Logically, one would assume that Title VII causation analysis would apply to Title VII retaliation since that is the same statute, but clearly the Court can't be held to statements the same five justices made four years ago. Far more important for the court to indulge its nonsensical fantasy that every law is really a repeal-by-implication of every related doctrine that the majority disagrees with. If Congress doesn't flyspeck its way through the entire U.S. Code every time it amends one law to see if the amendment might affect some vaguely related provision elsewhere, that's Congress's problem.

Or take another example-- arbitration clauses. Twenty years ago, arbitration was okay PRECISELY-- the court made this point in Gilmer v. Interstate Johnson/Lane in considerable detail-- because the availability of class arbitration meant the plaintiff could vindicate his rights. Two years ago, class arbitration went out the window for most cases, but it was okay because, as the court spent page after page detailing, the particular plaintiffs could vindicate their particular rights (never mind that few of them would ever bother, handing the company an enormous and totally unjustified windfall). This required the court to have the gall to non-ironically cite Gilmer as though it supported its position, but never mind. Now last week, the ability to get a meaningful recovery was just tossed out the window entirely. Well, who cares? The "vindication" rationale was never supposed to be taken seriously, after all. Clearly the lower courts didn't get the hint-- that the point here was to give companies carte blanche to ignore laws that poor and middle-class people actually care about. Arbitration is just a means to an end.

There's no reason to believe that this majority ever means it when they announce some limiting principle to a decision that seems-- on its face-- extraordinarily reactionary. It's safe to assume that the "limiting principle" will simply be ignored when the rubber meets the road.

Posted by: Anon | Jun 24, 2013 7:31:54 PM

Anon, I completely agree. Among the things that make me feel like these opinions are instrumental, I found the bait and switch in Nasser, even within the opinion, particularly infuriating. The bait and switch I'm referring to is the Court's treatment of Gross. In one section, the Court simply described what it did in Gross, emphasizing that the case had dealt with an entirely different statute to explain why the Court hadn't interpreted "because of" in the ADEA like that language in Title VII, and then it turned around and relied on Gross to say that "because of" in a statute means at least a but-for cause if not maybe even the but-for cause.

So, to translate: the ADEA is different, so we can't interpret this language to mean what it means in Title VII, but now, because this language means something in the ADEA, it must mean the same thing in Title VII. Maddening.

Posted by: Marcia | Jun 25, 2013 10:25:44 AM

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