Traverse City Record-Eagle

June 25, 2013

Court makes it harder to sue businesses

JESSE J. HOLLAND
Associated Press

---- — WASHINGTON (AP) — A sharply divided Supreme Court on Monday decided to make it harder for Americans to sue businesses for retaliation and discrimination, 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 co-worker’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.

Justice Ruth Bader Ginsburg wrote both dissents for the court’s liberal wing, and in a rare move, read them aloud in the courtroom. She 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 then called on Congress to change the law to overturn the court.

“We hold that an employee is a ‘supervisor’ for purpose of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim,” Justice Samuel 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.”

Alito shook his head as Ginsburg read her dissent of his opinion. “The court’s disregard for the realities of the workplace means that many victims of workplace harassment will have no effective remedy,” she said.

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 a 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.”

Alito, Kennedy, 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. For example, President Barack Obama in 2009 signed the Lilly Ledbetter Fair Pay Act, which effectively overturned a Supreme Court decision that had strictly limited workers’ ability to file lawsuits over pay inequity.

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

Ginsburg’s call was soon joined by other organizations.

“The rulings are a step backwards in our efforts to ensure equal economic opportunity and to fulfill the promise of Title VII of the Civil Rights Act of 1964,” said Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, Inc. “We call on Congress to once again take action to correct the court’s flawed and narrow interpretations of Title VII, just as Congress has done repeatedly in the past.”

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The cases are Vance v. Ball State University, 11-556 and University of Texas Southwestern Medical Center v. Nassar, 12-484.

Follow Jesse J. Holland at http://www.twitter.com/jessejholland