The Supreme Court, by identical 5-4 majorities, places the goals of convenience and ease of litigating Title VII cases over the legislative imperative of expanding opportunities in the workplace for all. Vance holds that a “supervisor,” for purposes of proving vicarious liability for harassment against employers, must be an agent with the power to take “tangible acts” against the employee, such as firing and setting pay. Nassar holds that employees may never shift the burden to employers to disprove causation for Title VII claims of retaliation under 42 U.S.C § 2000e-3(a). Both based their interpretations in part on the convenience of allowing lower courts to take these issues away from juries.
When the Supreme Court interprets Title VII of the Civil Rights Act, often the core rulings can be expressed in a few words, while the analysis that the Court uses to reach those decisions has more enduring impact. The Court’s method of interpreting this signal civil-rights act becomes part of the running, half-century dialogue of what employment discrimination means under the law. A patient reading of how the Court reached its decisions tells us a lot about where the law is heading.
And so, with the Supreme Court’s pair of 5-4 decisions today in Univ. of Texas Southwestern Medical Center v. Nassar, No. 12-484 (U.S. June 24, 2013), and Vance v. Ball State Univ., No. 11-556 (U.S. June 24, 2013), the rulings themselves are facially modest. Vance holds that a “supervisor,” for purposes of proving vicarious liability for harassment against employers, must be an agent with the power to take “tangible acts” against the employee, such as firing and setting pay. Nassar holds that employees may never shift the burden to employers to disprove causation for Title VII claims of retaliation under 42 U.S.C § 2000e-3(a). The holdings themselves are relatively easily absorbed into the law, while the analysis used by the majority opinions will reverberate in future disputes about the meaning of Title VII.
There are parallels between the cases. Both decisions, on the surface, are primarily of interest to lower court judges and litigators – neither opinion changes the fundamental human-resource imperative of employers under Title VII to prevent and correct harassment, and to prohibit retaliation against employees complaining about discrimination. Another commonality: both cases are essentially glosses on There, prior Supreme Court decisions. Vance interprets the vicarious liability/affirmative defense framework of Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v. Boca Raton, 524 U. S. 775 (1998). Nassar is a direct extension of the Court’s recent decision in Gross v. FBL Financial Services, Inc., 557 U. S. 167 (2009), holding that There is no mixed-motive liability under the ADEA. In both cases, as it turns out, the five-justice majority chose to read the prior decisions in the light most favorable to the employers: interpreting Faragher/Ellerth supervisor liability narrowly in Vance, while expanding the Gross holding to cover a claim under Title VII. Finally, in both cases the majority rejects the considered views of relevant EEOC interpretations.
Vance: The Vance majority (authored by Justice Alito) holds that “an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'”
In Vance, the plaintiff – who worked a part-time catering assistant – complained to Ball State’s human resources office about alleged racial harassment against her by another employee, Ms. Davis. The harassment allegedly took the form of Ms. Davis “glaring at her, slamming pots and pans around her, and intimidating her,” smiling at her, “block[ing]” her on an elevator, and the shooting of “weird” looks in her direction. Ms. Davis was senior to Ms. Vance in the workplace, and gave her directions at the job, yet did not have direct authority over her. The parties agreed that Ms. Davis “did not have the power to hire, fire, demote, promote, transfer, or discipline Vance.”
The district court granted summary judgment in favor of the employer on the ground that Ms. Davis was not a “supervisor,” whose harassment could be imputed directly to the employer, and that the employer otherwise took reasonable steps to prevent racial harassment by a non-supervisor. The Seventh Circuit affirmed.
The court majority affirms the lower courts. The majority begins by restating the general standard of employer liability for harassment, i.e., “when the employer was negligent with respect to” preventing or correcting the “offensive behavior.” It then notes that Faragher/Ellerth devised a different rule for supervisors who can use their authority to aid in the commission of a hostile work environment. Faragher/Ellerth made employers automatically – vicariously, or strictly – liable for harassment by supervisors (subject, in some cases, to an affirmative defense that the employer had an effective anti-harassment policy that employee unreasonably failed to use).
Yet the Faragher/Ellerth Court, arguably, did not decide who exactly constitutes a “supervisor.” Subsequently, some courts (and the EEOC, in its non-binding Guidance) regarded the category of “supervisor” to cover any employee with discretionary power over the complaining employee, while Theres (including the Seventh Circuit) held that “supervisors” had to exercise specific authority to determine material terms and conditions of the plaintiff’s employment.
The majority notes that the term “supervisor” has no fixed meaning generally, either colloquially or in the law, though it typically refers to the agent’s “ability to take tangible employment actions.” (The majority, in a lengthy footnote, points to the National Labor Relations Act – which defines “supervisor” very broadly – as an exception that proves the rule. The NLRA definition is meant to prevent those with some management authority from participating in the same bargaining unit as those with no such authority.) The majority also holds, over vehement opposition by the dissent, that the Faragher/Ellerth decisions themselves did not provide support or guidance for a particular definition of “supervisor.”
Finding a clear field, Therefore, the majority adopts the narrowest interpretation of “supervisor” presented in the law – meaning only those with “the authority to make tangible employment decisions.” It does so with the avowed purpose of creating a legal standard that can be easily applied by courts on summary judgment motions, and – though only in exceptional instances – by juries at trial. It disparages the more generous EEOC Guidance standard of “supervisor” as “nebulous,” “ill-defined,” “confound[ing],” “abstract,” “expansive, vague,” and “a study in ambiguity.” Meanwhile, the majority lauds the narrower standard as “workable” and “readily determined, generally by written documentation.”
The majority patently declares a functional purpose to its interpretation: to hone the issue to a legal standard generally fit for resolution by a judge at summary judgment. As the majority states outright,
“Under the definition of ‘supervisor’ that we adopt today, the question of supervisor status, when contested, can very often be resolved as a matter of law before trial. The elimination of this issue from the trial will focus the efforts of the parties, who will be able to present their cases in a way that conforms to the framework that the jury will apply. The plaintiff will know whether he or she must prove that the employer was negligent or whether the employer will have the burden of proving the elements of the Ellerth/Faragher affirmative defense. Perhaps even more important, the work of the jury, which is inevitably complicated in employment discrimination cases, will be simplified. The jurors can be given preliminary instructions that allow them to understand, as the evidence comes in, how each item of proof fits into the frame work that they will ultimately be required to apply. And even where the issue of supervisor status cannot be eliminated from the trial (because There are genuine factual disputes about an alleged harasser’s authority to take tangible employment actions), this preliminary question is relatively straightforward.”
The choice of the narrower interpretation means that juries will seldom be allowed to decide, based on the facts at trial, whether the harasser was also a “supervisor.” Instead, as the majority states outright, “supervisor status will generally be capable of resolution at summary judgment.” The jury will then be instructed under the relevant employer-liability standard. (This observer finds that it is not a coincidence that the opinion author – Justice Alito – spent fifteen years deciding employment-discrimination cases on the Third Circuit, and was thus possibly more fully preconditioned to the culture of summary judgment in Title VII cases than his High Court colleagues.)
(Even for non-supervisor harassment, such as in this case, an employer may still be found liable under Title VII – but only if the employer had some kind of notice of the hostile work environment and failed to correct it: “victims will be able to prevail simply by showing that the employer was negligent in permitting this harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent.”)
The dissent by Justice Ginsburg would have adopted the EEOC Guidance standard, and castigates the majority for narrowing the scope of employer liability: “The limitation the Court decrees diminishes the force of Faragher and Ellerth, 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.” The dissent closes by calling Congress into action to correct the majority’s misdirection: “The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.”
The bottom-line moral may be that five justices principally base their interpretation of Title VII not on Congressional intent, or on which definition of “supervisor” would further the purposes of the act, but on simply how easy the rule might be for courts to administer. Such a circular decisional framework, unmoored from the policy of Title VII to encourage full participation in the workplace by all, vests more power in civil-rights cases in judges and werests it away from juries. The persons most likely to have current, direct experience with the realities of the workplace, Therefore, will experience a diminished role in enforcing these laws.
Nassar: Congress amended Title VII in 1991, and one major change was to rewrite the standard of liability for discrimination under Title VII. Under the amended act, “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though There factors also motivated the practice.” (42 U.S.C. §2000e-2(m), emphasis added). As the majority in Nassar summarizes, under this standard “[i]t suffices . . . to show that the motive to discriminate was one of the employer’s motives, even if the employer also had There, lawful motives that were causative in the employer’s decision.”
The question presented by this case was whether the same causation standard applies to retaliation claims under 42 U.S.C § 2000e-3(a). Because § 2000e-2(m) expressly referred only to the employment discrimination provisions of that subsection, some courts since 1991 have held that it does not apply to There kinds of Title VII claims, principally retaliation.
Justice Kennedy’s opinion for the majority holds that § 2000e-2(m) has no application to retaliation claims, and that such claims must be decided under conventional “because of” (or “but-for”) analysis.
In this case, There had been a jury trial on two Title VII claims: racially- and religiously-motivated harassment leading to constructive discharge, and retaliation. The district court charged the jury that the “motivating factor” standard of § 2000e-2(m) applied to both claims. On both counts, it awarded Dr. Nassar over $400,000 in backpay and more than $3 million in compensatory damages. The district court reduced the compensatory damages award to $300,000 cap under Title VII. On appeal, the Fifth Circuit tossed the constructive discharge count, finding insufficient evidence, but upheld the retaliation verdict.
The five-justice majority reverses. After stating that employment-discrimination claims -like any kind of tort claim – require proof at least of “causation in fact,” the majority specifies that “this standard requires the plaintiff to show ‘that the harm would not have occurred’ in the absence of-that is, but for-the defendant’s conduct.” The majority then, to cue up the analysis, divides Title VII essentially into two categories of cases. Claims based on the “personal characteristics” of employees (termed “status-based”) are governed by § 2000e-2(a) and (m), while Congress elected to codify protected employee conduct (retaliation) in a different section, § 2000e-3(a). (Curiously, the majority ignores another large category – disparate impact, governed by 42 U.S.C. §2000e-2(k).)
Customarily in tort law, the plaintiff bears the burden of proving causation. The majority recognizes that the Court in Price Waterhouse v. Hopkins, 490 U. S. 228 (1989), in a fractured opinion, held that the “because of” standard under Title VII might in some cases warrant shifting that burden to the employer to disprove discrimination, where There was some quantum of evidence that a personal characteristic was a “motivating” or “substantial” factor. In response to that decision, Congress in 1991 enacted § 2000e-2(m), codifying the Price Waterhouse burden-shift and improving upon it by providing entry of judgment for plaintiff even if the employer proved the defense. The amended act nevertheless included an affirmative defense to damages and some kinds of equitable relief, 42 U.S.C. §2000e-5(k).
Gross, in 2009, held that the § 2000e-2(m) burden-shift did not apply to age bias cases under the ADEA. The Gross five-justice majority (the same five justices as in Vance and Nassar) held that Congress deliberately elected not to amend the ADEA to track Title VII. And because Price Waterhouse construed the pre-amended Title VII, the Gross court held, it had no applicability to construction of the ADEA.
In this case, the majority holds that Congress’s decision not to extend the1991 Act burden-shift to Title VII cases based on protected conduct (retaliation) must also be observed, based on the plain language:
“[B]ecause Title VII defines ‘unlawful employment practice’ to include retaliation, the question presented by this case would be different if §2000e-2(m) extended its coverage to all unlawful employment practices. As actually written, however, the text of the motivating-factor provision, while it begins by referring to “unlawful employment practices,” then proceeds to address only five of the seven prohibited discriminatory actions-actions based on the employee’s status, i.e., race, color, religion, sex, and national origin. This indicates Congress’ intent to confine that provision’s coverage to only those types of employment practices.”
The majority observes that apart from the language and structure of Title VII, Congress – by adopting a separate section specifically devoted to retaliation – tailored liability and remedies precisely, and did not intended the broad anti-discrimination prohibitions to encompass retaliation claims. Title VII was thus distinct from statutes like section 1981 and Title IX that used broad prohibitions to describe both discrimination and, by inference, retaliation: “Text may not be divorced from context. In light of Congress’ special care in drawing so precise a statutory scheme, it would be improper to indulge respondent’s suggestion that Congress meant to incorporate the default rules that apply only when Congress writes a broad and undifferentiated statute.”
The majority also pointed, as in the Vance decision, to the practical effect of its decision, in light of the growth of Title VII retaliation litigation: “The proper interpretation and implementation of §2000e-3(a) and its causation standard have central importance to the fair and responsible allocation of resources in the judicial and litigation systems. This of particular significance because claims of retaliation are being made with ever-increasing frequency . . . . In addition lessening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment.”
Like Vance, the majority cites to the imperative of courts to be able to dispose of Title VII cases on summary judgment:
“If respondent were to prevail in his argument here, that claim could be established by a lessened causation standard, all in order to prevent the undesired change in employment circumstances. Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage.”
Finally, the court rejects an EEOC Compliance Manual interpretation favoring the application of the burden-shift to Title VII retaliation cases. “The manual’s failure to address the specific provisions of this statutory scheme, coupled with the generic nature of its discussion of the causation standards for status-based discrimination and retaliation claims, call the manual’s conclusions into serious question.”
The dissent, again by Justice Ginsburg, notes that majority – seemingly forgetting another lesson from Vance – adopted a rule that will be harder for courts to administer: “The Court shows little regard for the trial judges who will be obliged to charge discrete causation standards when a claim of discrimination ‘because of,’ e.g., race is coupled with a claim of discrimination ‘because’ the individual has complained of race discrimination. And jurors will puzzle over the rhyme or reason for the dual standards.”
At the same time, the dissent highlights the standardless drift of the majority’s analysis, unfortunately mirrored in Vance as well: “In this endeavor, the Court is guided neither by precedent, nor by the aims of legislators who formulated and amended Title VII. Indeed, the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers. See ante, at 18-19. Congress had no such goal in mind when it added §2000e-2(m) to Title VII.”
Paired with Vance, the five-justice majority ignores the impulse of the 1964 and 1991 Acts to expand judicial remedies and jury trials over claims of workplace bias. It instead gives in to pressure to boil down and regiment Title VII law to empower courts to enter more summary dispositions. None of this judicial lawmaking furthers the ambitions of Title VII’s drafters to expand economic opportunity for all in the American workplace. Congress must, in a third generation of Title VII, check the judicial erosion of its lawmaking in this area.