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07/04/2013

SUPREME COURT DEALS A BLOW TO EMPLOYEES IN TWO DISCRISCRIMINATION CASES

June 25, 2013

WASHINGTON — The Supreme Court made it harder for Americans to win discrimination or retaliation lawsuits against their employers, leading to calls for Congress to step in to protect workers as it did in 2009.

In a pair of 5-4 decisions Monday, the court ruled that only someone with the ability to hire or fire someone should be considered a supervisor in discrimination lawsuits. This definition will make it harder to blame a business for a co-worker's sexual or racially motivated harassment.

Meanwhile, the court also limited how juries can decide on retaliation lawsuits. An employee who alleges he was a victim of illegal retaliation must prove this was the reason for his firing, not one of several reasons. It is not enough to prove that illegal bias played some part in the decision, the court said.

Dissenting in the courtroom, Justice Ruth Bader Ginsburg said the decisions badly weaken anti-discrimination laws. They are reminiscent, she said, of the 2007 decision in the Lilly Ledbetter case, which threw out a pay-discrimination verdict in favor of an Alabama woman.

"In 2009, Congress corrected that error," she said. "Today, the ball again lies in Congress' court to correct this court's wayward interpretations of Title VII," she said. Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined her in dissent on both cases.

It was a strong dissent from Ginsburg, who specialized in sexual discrimination cases when she was a lawyer, that encouraged Congress to reverse the outcome of the Ledbetter case. Outside groups were calling Monday for Congress to do the same in this situation.

Marcia Greenberger, co-president of the National Women's Law Center, said the decisions "ignore the reality of the workplace and the ways in which discrimination and harassment play out every day."

The ruling in the first case tossed out a discrimination suit brought by a black cafeteria worker against Ball State University. Maetta Vance, the worker, said she had repeatedly clashed with a white cafeteria manager who made derogatory comments about her. She said the cafeteria manager was her supervisor and the university therefore was responsible for the harassment

The Supreme Court disagreed in Vance vs. Ball State and said her complaint was properly dismissed.

"We hold that an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take employment actions against the victim" such as firing or reassigning the victim, Justice Samuel A. Alito Jr. said. "Because there is no evidence that BSU empowered the [cafeteria manager] to take any tangible employment actions against Vance," her suit is dismissed, he said.

His opinion spoke for Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

In the Texas case the justices reversed a jury verdict against the University of Texas Southwestern Medical Center in Dallas, which had been sued by Dr. Naiel Nassar, who is of Middle Eastern descent.

When he was working as a university faculty member, he complained that one of his supervisors was biased against him and made harsh comments about Middle Easterners. He then decided to leave that position to take a job as a hospital physician. But a top hospital official, upset by his allegations against his former supervisor, withdrew the job offer.

Nassar sued, alleging he had been a victim of illegal retaliation. The top official who had stood in Nassar's way said he was opposed to hiring staff physicians who were not also on the university faculty. But the jury ruled for Nassar on the theory that retaliation for his complaints played a role in the decision to withdraw the offer.

He was awarded more than $700,000 in compensation and back pay. The 5th Circuit Court of Appeals affirmed the verdict.

Kennedy said the verdict could not stand because Nassar did not prove that illegal retaliation was the motivating factor in the hospital's decision to withdraw its job offer. As precedent, he cited an opinion four years ago that sharply limited age discrimination claims. The court said then that employees who allege they were fired or not hired because of their age must prove that was the motivating factor, not just one of several reasons.

Alito, responding to Ginsburg's criticism, said the court had not closed the door to discrimination claims for the on-the-job harassment. He said that if victims complain to top supervisors about harassment and nothing is done to stop it, they can sue and win a lawsuit.

But ordinarily, he said, employers can be held strictly liable for harassment only if it is perpetrated by a supervisor who holds real authority.

david.savage@latimes.com

omega10 at 4:19 AM June 26, 2013

What if the offender is the supervisor with hiring/firing authority?  To whom does a harassed employee report discrimination to then?

What if the employer/supervisor doesn't like an employee for some minor reason  or because of their gender, race or religion & wants to get rid of them, so sets up  multiple forms of harassment hoping they'll leave.  Does that mean that there cannot be a case because there is more than one type of discrimination or retaliation?  That would make no sense at all since multiple tactics are often used in cases of discrimination.

Halfof the SCOTUS has proved again that they are biased, activist judges with their own agendas who want to send us back to the Stone Age & domination by rich white men. Maybe this is why the Bush/Cheney admin. got a pass for all their apparently illegal acts; they gave America the Court the extreme right fascist base wanted. SCOTUS's decision on Bush v. Gore  marked the beginning of the end for the U.S. as we've known it.  Let's not forget that Chief J John Roberts is the one man responsible for the appointment of judges to the FISA court,that secretive, rubber stamping, wiretapping org.

limitgovt at 4:39 PM June 25, 2013

Gaucho - I still think that your ex employer would be liable for discrminiation under this decision.  However, as such a principled commentator on civil rights, why didnt you step up and challenge these numerous racists that you have encountered?  Or report them to the EEOC or HR department?

Overall, Anything we can do to limit frivolous and unfounded lawsuits is good.  All you have to do is look at the growth in billboards and TV ads of the many, many ambulance chasing attorneys to understand that the problem is too many lawsuits, not too few.

Bradford Talamon at 2:21 PM June 25, 2013

I defended federal employers from anti-discrimination and retaliation lawsuits during my 27 year legal career and I can tell you that this is a HUGE change in the law.

Part of this decision corrects what I saw as a poorly-reasoned prior decision by the Supreme Court that imposed strict liability on employers for the actions any supervisors at any level of the management chain.  Most discrimination lawsuits involve the actions of a first-line supervisor.  Some employers actually pick their first line supervisors from the rank and file to serve as supervisors for limited periods of time and then they rotate back into the rank and file.  This all-too-often led to "go-along-to get-along" supervision that an employer could be held strictly liable for.  The Court's decision will provide some needed relief in that area by imposing the requirement for the employee to bring any allegations of discrimination or harassment to the attention of the top management (the hiring and firing authority) and the employer can still be held liable if the top management fails to act to prevent the actions complained of from continuing.

However, I also believe that the Supreme Court's decision regarding unlawful retaliation against the employee by management for filing a lawsuit is a bad one that is poorly reasoned.  It is now too easy for employers to make up a pretextual reason to retaliate. 

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