Justice Ginsburg Calls for New Civil Rights Restoration Act

Dissenting from two 5-4 decisions by the Supreme Court in employment discrimination cases issued on June 24, Justice Ruth Bader Ginsburg called for a new Civil Rights Restoration Act, referring to a 1991 statute that overruled or modified several Supreme Court decisions on federal employment discrimination law.  In University of Texas Southwestern Medical Center v. Nassar, the Court interpreted Title VII’s anti-retaliation provision narrowly to apply only to cases where the plaintiff showed that the employer’s retaliatory conduct was motivated solely by the employee’s claim of discrimination.  In Vance v. Ball State University, the Court ruled that an employer could not be held vicariously liable for workplace harassment unless the harasser is a “supervisor” who is “empowered by the employer to take tangible employment actions against the victim” of the harassment.

In both cases, the Court was resolving a diversity of views about the correct interpretation of Title VII by the lower federal courts.  The Nassar ruling on retaliation reversed a decision by the U.S. Court of Appeals for the 5th Circuit, while the Vance ruling affirmed a decision by the 7th Circuit Court of Appeals, which had disagreed with the 2nd and 4th Circuits and the EEOC as to when the vicarious liability rule governing harassment by supervisors should be applied.  In both cases, the Court’s 5-4 majority came down on the side favored by employers, cutting back on the protection Title VII provides to workers against workplace discrimination.  Thus Justice Ginsburg’s call for corrective action.

Both majority opinions reach their results by avoiding the realities of the workplace, as dissenting opinions by Ginsburg, joined by Justice Breyer, Sotomayor and Kagan, point out.

As to the retalation case, the Court seized upon the complexities of a statute amended in response to prior Supreme Court decisions with which Congress disagreed.  The Court had ruled, in a prior case, that when an employee proves that his or her race or color, religion, national origin or sex was a motivating factor for adverse action by the employer, an employer could defeat the discrimination claim by showing that it would have taken the same action for a non-discriminatory reason.  This is the so-called “mixed motive” case.  Congress disagreed with this result, amending the statute in 1991 to provide that as long as an employee showed that one of the prohibited grounds for discrimination was a factor in the employer’s action, the statute was violated.  Congress also provided, however, that an employer’s proof of a non-discriminatory motive could result in limiting the remedy imposed by the court, eliminating damages and reinstatement orders in such situations. 

The EEOC and some lower federal courts took the view that the 1991 amendments applied to all discrimination claims under Title VII, whether they involved status discrimination (discrimination because of an individual race or color, religion, national origin or sex) or discrimination against an employee who had opposed unlawful discrimination or filed a discriminate claim against the employer.  However, in this case, the Court seized upon the particular wording of the 1991 amendment to hold that it applied only to status discrimination claims.  The Court pointed out that Title VII has separate provisions dealing with status discrimination and retaliation, and that Congress appeared (at least to the Court) to have been concerned only with the former when it amended the statute in 1991.  The Court also drew an analogy to its treatment of the Age Discrimination in Employment Act, a separate statute, which the Court has construed to impose liability on employers only when an employee proves that discrimination was solely because of the employee’s age.  The Court had reached that result by observing that the 1991 amendment did not, by its terms, apply to the ADEA.  The Court also suggested that adopting the mixed motivation standard of the 1991 amendment for retaliation claims would open the floodgates to retaliation claims by making them too easy for plaintiffs to win.

Responding to Justice Kennedy’s opinion for the Court, Justice Ginsburg charges that “the court appears drive by a zeal to reduce the number of retaliation claims filed against employers,” although, she asserted, “Congress had no such goal in mind” when it adopted the 1991 amendment.  “Today’s misguided judgment, along with the judgment in Vance v. Ball State University, should prompt yet another Civil Rights Restoration Act.”

In Vance, where Justice Samuel Alito wrote for the 5-4 majority, the Court dealt with the ever-contentious issue of employer liability for workplace harassment of one employee by another.  In earlier cases, the Court had ruled that when an employee is harassed by a supervisor because of the employee’s sex, the employer could be held “vicariously liable” for such harassment because the supervisor is acting as the employer’s agent, empowered by the employer to make decisions affecting the employment of the victim.  But the Court had left it to subsequent cases to work out exactly how “supervisor” should be defined for this purpose.

Many lower courts, and the Equal Empoyment Opportunity Commission, have taken the view that any employee who has authority or power over another employee, such as to direct where, when or how that employee does their work, should be deemed a supervisor for this purpose, but the majority of the Court disagreed, holding that only a worker who can take “tangible” actions against an employee, such as actions affecting their pay or benefits, discharge or demotion or the like, would be deemed a supervisor for whose harassing conduct an employee could be held “vicariously liable.”  (In the absence of vicarious liability, an employee suffering harassment would have to show that the employer was negligent in order to hold the employer liable for harassment by a co-worker.  Even in cases of potential vicarious liability, if an employee subject to harassment does not also suffer “tangible” adverse consequences, an employer can escape liability by showing that it has a policy against harassment and a workplace grievance system to address complaints that was not properly invoked by the employer.)

Justice Alito said that the prior caselaw contemplated a clear distinction between supervisors and other employees, and a definition based on authority to make such decisions concern tangible factors provided the basis for such a clear distinction.  He criticized the approach taken by the EEOC and some lower courts as a “nebulous definition” that was not easy to apply, noted that the term is not expressly defined by Congress in Title VII, and thus concludes that it should be construed in light of the elaborate framework the Court had adopted in prior cases to determine whether it was appropriate to hold the employer liable for harassing conduct by employees.  In both of the cases, it was clear that the harassing employees were “supervisors” as the majority of the Court defines the term in this case: individuals having authority regarding “tangible employment actions.”   The Court found such a characterization to be “implicit in the characteristics of the framework that we adopted” in those cases, that the ability to impose “direct economic harm” was the “defining characteristic of a supervisor, not simply a characteristic of a subset of an ill-defined class of employees who qualify as supervisors.”  Justice Alito commended the relative ease of determining supervisory status under this test, pointing out that “the question of supervisor status, when contested, can very often be resolved as a matter of law before trial.”  In other words, this decision is intended, like many prior decisions of the Court, to enhance the ability of federal trial judges to dispose of employment discrimination cases without a trial by deciding, as a matter of law, that the employer cannot be held liable because the harasser was not a supervisor and the plaintiff introduced no substantial evidence of employer negligence.

Justice Ginsburg sharply responded:  “The Court today strikes from the supervisory category employees who control the day-to-day schedules and assignments of others, confining the category to those formally empowered to take tangible employment actions.  The limitation the court decrees diminishes the force” of its prior decisions on employer liability for harassment by supervisors, “ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation’s workplaces.”  Ginsburg points out that low-level supervisory personnel can, nonetheless, make a subordinate’s life in the workplace very uncomfortable, because they are empowered by the employer to make decisions that affect employees in their day-to-day work. 

The Court’s decision, says Ginsburg, “is blind to the realities of the workplace, and it discounts the guidance of the EEOC,” which had taken a broader view under which any worker to whom the employer has given authority “to controlt he conditions under which subordinates do their daily work” is a supervisor for purposes of imputing liability for harassment.  Ginsburg argued that prior decisions by the court had reached such conclusions, including — contrary to Justice Alito’s assertions — one of the very cases in which the  Court had established the framework for analyzing employer liability.  Ginsburg also pointed out that the narrow definition of supervisor adopted by the Court in this case will result in employers having a “diminished incentive to train those who control their subordinates’ work activites and schedules, i.e., the supervisors who actually interact with employees.”    She argued that the Court majority is “insistent on constructing artifical categories where context should be key,” and charged that it “proceeds on an immoderate and unrestrained course to corral Title VII.” 

As in her dissent in the other case, Ginsburg points out that Congress has repeatedly had to step in and amend the statute to restore the protection against discrimination that Congress intended to provide for workers.  “The ball is once again in Congress’s court to correct the error into which this Court has fallen,” she concludes, “and to restore the robust protections against workplace harassment the Court weakens today.” 



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