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People wait outside the Supreme Court in anticipation of key decisions being announced, on Capitol Hill in Washington, Monday, June 17, 2013. With a week remaining in the current Supreme Court term, several major cases are still outstanding that could have widespread political impact on same-sex marriage, voting rights, and affirmative action. (AP Photo/J. Scott Applewhite)
Supreme Court makes it harder to sue businesses
First Published Jun 24 2013 08:13 am • Last Updated Jun 24 2013 10:56 am

WASHINGTON • A sharply-divided Supreme Court on Monday made it more difficult for Americans to sue businesses for discrimination and retaliation, leading a justice to call for Congress to overturn the court’s actions.

The court’s conservatives, in two 5-4 decisions, ruled that a person must be able to hire and fire someone to be considered a supervisor in discrimination lawsuits, making it harder to blame a business for a coworker’s racism or sexism. The court then decided to limit how juries can decide retaliation lawsuits, saying victims must prove employers would not have taken action against them but for their intention to retaliate.

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Justice Ruth Bader Ginsburg, who wrote both dissents for the court’s liberal wing and in a rare move read one aloud in the courtroom, said the high court had "corralled Title VII," a law designed to stop discrimination in the nation’s workplaces.

"Both decisions dilute the strength of Title VII in ways Congress could not have intended," said Ginsburg, who called on Congress to change the law to overturn the court.

In the first case, Maetta Vance, who was a catering specialist at Ball State University, accused a co-worker, Shaundra Davis, of racial harassment and retaliation in 2005. Vance sued the school under the Civil Rights Act of 1964, saying the university was liable since Davis was her supervisor. But a federal judge threw out her lawsuit, saying that since Davis could not fire Vance, she was only a co-worker, and since the university had taken corrective action, it was not liable for Davis’ actions. The 7th Circuit upheld that decision, and Vance appealed to the Supreme Court.

But Justice Samuel Alito, who wrote the majority opinion, said for the university to be liable, Davis must have had the authority to "hire, fire, demote, promote, transfer, or discipline" Vance.

"We hold that an employee is a ‘supervisor’ for purposed of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim," Alito said. "Because there is no evidence that BSU empowered Davis to take any tangible employment actions against Vance, the judgment of the Seventh Circuit is affirmed."

Alliance for Justice President Nan Aron said the court made the wrong decision. "Deferring to the powerful at the expense of the powerless, the Supreme Court majority has imposed heavier burden for victims of workplace harassment and discrimination seeking justice in our courts," she said. "This decision makes it far easier for employers to evade responsibility for discrimination and harassment in the workplace."

In the second case, the University of Texas Southwestern Medical Center wanted a discrimination lawsuit won by Dr. Naiel Nassar thrown out. Nassar left in 2006 after complaining of harassment, but Parkland Hospital withdrew its job offer after one of his former supervisors opposed it. Nassar sued, saying the medical center retaliated against him for his discrimination complaints by encouraging Parkland to take away his job offer. A jury awarded him more than $3 million in damages.

The medical center appealed, saying the judge told the jury it only had to find that retaliation was a motivating factor in the supervisor’s actions, called mixed-motive. Instead, it said, the judge should have told the jury it had to find that discriminatory action wouldn’t have happened "but-for" the supervisor’s desire to retaliate for liability to attach.


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Justice Anthony Kennedy, who wrote the opinion, agreed with the lower court and the university, saying people "must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer." But he didn’t rule completely for the medical center, sending the case back to the lower courts after saying a decision on the resolution of the case "is better suited by courts closer to the facts of this case."

Karen Harned, executive director of the National Federation of Independent Business’ Small Business Legal Center, cheered the decision.

"If courts were allowed to label employees with little managerial authority as ‘supervisors,’ that would have substantially increased the number of frivolous lawsuits brought against small businesses and would have done little, if anything, to reduce harassment," she said. "For small businesses, the increased possibility of liability and ensuing costs would have been devastating. We are very pleased with the Supreme Court’s decision."

Kennedy, Alito, Chief Justice John Roberts, and Justices Antonin Scalia and Clarence Thomas voted together in those cases.

Ginsburg, and Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented together both times.

Ginsburg said she hopes Congress intervenes in both cases, just as it did in past Title VII cases. "Today, the ball again lies in Congress’ court to correct this court’s wayward interpretations of Title VII," she said.

In other actions, the court:

— Sent a Texas case on race-based college admissions back to a lower court for another look. The court’s 7-1 decision leaves unsettled many of the basic questions about the continued use of race as a factor in college admissions.

— Announced that it would issue additional opinions on Tuesday as it begins to wrap up its work for the summer. Justices still have not decided major cases involving gay marriage and the Voting Rights Act.

— Decided to reconsider the constitutionality of a 2007 Massachusetts law that bars protests in 35-foot "buffer zones" around abortion clinic entrances, exits and driveways.

— Agreed to review a federal appeals court decision that found President Barack Obama violated the Constitution when he bypassed the Senate last year to appoint three members of the National Labor Relations Board.

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