Supreme Court splits openly on worker protection suits

A familiar scenario at the Supreme Court on Monday resulted in a familiar result: liberal Justice Ruth Bader Ginsburg calling for Congress to reverse two employment rulings just issued by the court’s conservative majority.

In both cases, the court voted 5 to 4 to make it harder for employees to challenge what they considered workplace harassment and retaliation for complaints of discrimination, violations of Title VII of the Civil Rights Act.

In one, Justice Samuel A. Alito Jr.’s majority opinion said that a worker must be able to hire, fire or demote someone to be considered a “supervisor,” even if the person is responsible for another’s daily work duties.

The distinction is important because a company is liable for a supervisor’s racist or sexist behavior, but it can be more difficult to prove the company’s liability if the objectionable behavior comes from a co-worker.

In the other, Justice Anthony M. Kennedy said victims must prove to juries in a retaliation suit that the actions taken against them came only as a result of the employee’s complaint of discrimination and not other reasons.

“Both decisions dilute the strength of Title VII in ways Congress could not have intended,” Ginsburg said in a dissenting statement read from the bench, with Alito on one side of her and Kennedy on the other.

Ginsburg called for action, as she did six years ago in response to the court’s dismissal of a lawsuit filed by Lilly Ledbetter, a tire plant supervisor who the court said waited too long to file her complaint about being paid less then male co-workers. Ginsburg’s appeal worked in that case: A bill changing the rules about such suits was the first major legislation signed by President Obama.

“The ball again lies in Congress’s court to correct this court’s wayward interpretations of Title VII,” Ginsburg said.

In both cases Monday, Alito and Kennedy were joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas. Ginsburg’s dissents were joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

Ginsburg’s high-profile statement drew attention to a pair of the court’s lesser-noticed ­cases and revived an interest-group battle over whether the court is overly protective of the business community.

Each decision “protects small-business owners from litigious employees,” said Karen Harned, executive director of the National Federation of Independent Business Small Business Legal Center.

But liberal groups were tough in their criticism.

“The five far-right justices again opted to side with powerful corporations rather than protect the rights of individual workers and consumers,” said Michael B. Keegan, president of People for the American Way Foundation.

Tom Donnelly of the Constitutional Accountability Center pointed out that the U.S. Chamber of Commerce continued its winning ways at the court and has prevailed in 13 of the 16 issues before the court this term in which it was involved.

Alito’s reaction to Ginsburg’s dissent from the bench also drew comments, bringing up comparisons to his last visit to the State of the Union address, in 2010. As President Obama criticized the court’s decision in Citizens United v. Federal Election Commission, Alito shook his head and mouthed the words “not true.”

He was only slightly less demonstrative while Ginsburg spoke Monday, shaking his head and appearing to roll his eyes as she described a “typical, and not at all hypothetical” example of on-the-job harassment.

The case involved Maetta Vance, an African American woman who said she was subjected to harassment by a co-worker at Ball State University who could assign her tasks.

In his opinion for the majority, Alito rejected a “nebulous” definition of supervisor adopted by the Equal Employment Opportunity Commission and said the term should refer only to someone the employer has empowered “to take tangible employment actions” against the accuser, such as hiring and firing.

“This approach will not leave employees unprotected against harassment by co-workers who possess the authority to inflict psychological injury by assigning unpleasant tasks or by altering the work environment in objectionable ways,” Alito wrote. “In such cases, the victims will be able to prevail simply by showing that the employer was negligent in permitting this harassment to occur.”

In the second case, the court threw out a discrimination lawsuit that a physician won against the University of Texas Southwestern Medical Center. Naiel Nassar claimed that a job offer was withdrawn from an affiliated hospital because he had complained about “religious, racial and cultural bias.”

Sending the case back to lower courts, Kennedy wrote that Nassar needed to prove not just that retaliation was a motivating factor in the university’s action but also that the action would not have happened except to retaliate, which is harder to prove.

The cases are Vance v. Ball State University and University of Texas Southwest Medical Center v. Nassar.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
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