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It’s September, Get Informed: Title VII Shenanigans

A quote by Justice Thurgood Marshall at the Virginia Civil Rights Memorial. What would he have said about these decisions? By "Ron Cogswell." Flickr, Creative Commons license.

Well, readers, we’ve reached that point—the air is cooling, the Autumnal Equinox has come and gone, and the calendar reads October. These facts indicate that my month of Supreme Court Summarizing has come to a close, and starting very soon, the Court will be back in session. I know that it’s October 2nd, but I’ve decided to write one last “It’s September, Get Informed” column because there are two more cases that deserve publicity and analysis. I’ve saved the best (or, as you’ll see, the worst) for last: University of Texas Southwestern Medical Center v. Nassar and Vance v. Ball State University, both handed down on June 24, 2013.

Why, exactly, did I call these cases “the worst,” and why did I save them for last? Perhaps because I’m a huge supporter of Title VII of the Civil Rights Act of 1964, or perhaps because I think employees from all kinds of backgrounds should have the right to challenge discriminatory practices in the workplace. Either way, it’s important that I explain Title VII before delving into the meat of these cases. According to the American Association of University Women, “Title VII of the Civil Rights Act of 1964 is a federal law that prohibits discrimination in employment on the basis of sex, race, color, national origin, and religion. It applies to employers with 15 or more employees, including federal, state, and local governments. Title VII also applies to private and public colleges and universities, employment agencies, and labor organizations.”

As the Society for Human Resource Management explains, under Title VII “It is unlawful to discriminate against any individual in regard to recruiting, hiring and promotion… or any other term, condition, or privilege of employment. Title VII prohibits not only intentional discrimination, but also neutral job policies that disproportionately affect persons of a certain race or color and that are not related to the job and the needs of the business.” Employees who have been discriminated against in their workplaces are able to sue their employers under Title VII, and, as such, this portion of the Civil Rights Act was one of the key victories of the Civil Rights Movement in the 1960s.

Unfortunately, the Supreme Court’s June 2013 decisions struck several blows to key Civil Rights Movement victories (two months before the 50th anniversary of the March on Washington, no less), with Nassar and Vance narrowing employees’ rights under Title VII, Fisher v. University of Texas at Austin striking down UT Austin’s affirmative action admissions policies, and Shelby County v. Holder gutting a key provision of the Voting Rights Act of 1965. Some well-written articles about race and the Supreme Court in these June 2013 decisions can be found hereherehere, and here,  but we will keep our focus limited to Nassar and Vance.

In both Vance and Nassar, minority employees sued their university workplaces on the grounds of racial discrimination. Vance, argued on November 26, 2012, was a suit brought against Ball State University (BSU) by Maetta Vance, an African American woman who worked for BSU’s University Dining Services beginning in 1989. You should read a full report of the case’s background, which is covered well at Oyez, but the facts boil down to this: Vance reported several incidents of coworkers using racial epithets around her and other students, and also of other racially-discriminatory behaviors directed toward her, and BSU did very little to rectify the situation. Thus, she brought suit on October 3, 2006. After she filed suit, she “claimed her work environment continued to worsen, but the University’s investigations did not yield enough evidence to discipline anyone.”

Similarly, Nassar, argued on April 24, 2013, was a suit brought against the University of Texas Southwestern Medical Center (UTSW) by Dr. Naiel Nassar, a doctor of “Middle Eastern descent” who was “hired by UTSW in 1995 to work at the Amelia Court Clinic (Clinic), which specializes in HIV/AIDS treatment” (information from Oyez). Again, you should read the whole background (at Oyez) to get a better sense of the case, but the basics are as follows: Nassar was discriminated against by the UTSW supervisor (Dr. Beth Levine) to his immediate Clinic supervisor (Dr. Philip Keiser), so he resigned from his UTSW position, citing “Levine’s harassment and the creation of an unhealthy work environment in his resignation letter.” Nassar resigned “with the understanding that he would be offered a position at the Clinic unaffiliated with the UTSW, but the Clinic was forced to withdraw its offer after heavy opposition from the UTSW faculty, who have an agreement with the Clinic regarding positions to be filled by faculty doctors.” Due to this false offer, Nassar sued UTSW in 2008.

Title VII lies at the heart of each case, but it is applied very differently to the two situations. In Vance, the actual legal question was whether “a coworker who is vested with the authority to oversee the daily work of another worker be considered a supervisor for the purpose of determining employer liability for harassment” (from Oyez)—under Title VII, employers can be held liable for the actions of “supervisors,” but not employee-to-employee harassment. As SCOTUSblog explains, “In the late 1990s, the Court held… that an employer is automatically liable under Title VII… for discrimination by an employer who is a “supervisor.” On the other hand, if a co-worker discriminates, the company is liable only if the victim complains to her employer and the employer is negligent in responding to the complaint.” Vance and her legal team argued that BSU was liable in her case because she received harassment from her “supervisor,” because the employee harassing her had the “authority to control someone else’s [i.e. Vance’s] daily activities and evaluate performance.” BSU claimed that a “supervisor” “must have more power, such as the ability to take a tangible action such as hiring, firing, or promoting the employee.”

In a 5-4 decision, with the majority opinion penned by Justice Alito, the Supreme Court agreed with BSU and decided that “an employee is a “supervisor” for purposes of vicarious liability under Title VII of the Civil Rights Act only if he is empowered by the employer to take tangible employment actions against the victim” (from SCOTUSblog). The Court decided that the discrimination suffered by Vance was not a “tangible employment action” taken against her by a “supervisor,” and as a result she lost her suit.

With Nassar’s suit, it was not a question of “supervisors” under Title VII, even though he did face discriminatory treatment at the hands of his UTSW supervisor, Levine. Instead, he filed suit based upon the dropped job offer from the Amelia Court Clinic, and following Title VII he “argued that UTSW had constructively discharged and retaliated against him” (from Oyez). Under Title VII, as described by SCOTUSblog, an employer is prohibited “from retaliating against a worker for complaining about employment discrimination (for example, by filing a complaint with the Equal Employment Opportunity Commission (EEOC), the agency that enforces Title VII).”

However, due to a past Supreme Court decision, employees are now required “to prove that the discrimination was the so-called ‘but for’ cause of the employee’s termination, failure to be hired, etc.” (from SCOTUSblog). This “but for” philosophy boils down to the idea that an employee can still lose a discrimination suit if a jury or judge decides that the employee would not have been hired, fired, etc. regardless of one’s position as a minority (e.g. “The employer wouldn’t have hired you anyway, not just because you’re a woman”); the employee must prove that s/he would not have been discriminated against but for his or her discriminating factor (i.e. race, gender, sexual orientation, etc.). To work around this rule, Congress amended Title VII in 1991 to “say that all the worker has to show is that discrimination was a ‘motivating factor’ in the employment decision; if so, the worker wins the case, but the employer can avoid having to pay damages if it can show that it would have taken the same action anyway.”

The Court, in Nassar, sought to answer the question of whether this “motivating factor” amendment to Title VII applies to the law’s specific employer-retaliation rules. And, in a 5-4 decision, penned by perennial swing vote Justice Kennedy, the Supreme Court held, “Employee retaliation claims filed under Title VII of the Civil Rights Act of 1964 must be proved according to traditional principles of but-for causation, not the lessened causation test stated in the 42 USC  § 2000e—2(m).” In plain English, this means that Congress’ “motivating factor” amendment “only applies to claims of ‘discrimination’—which, in this context, means only claims of discrimination based on (for example) race, sex, and religion, rather than retaliation” (from SCOTUSblog’s analysis). Under this ruling, in order to win his suit Nassar would have had to prove that the Amelia Court Clinic would have hired him but for his Middle Eastern heritage. Had the “motivating factor” amendment applied to retaliatory claims, or had Nassar filed his suit for different Title VII reasons, perhaps the decision would have fallen in his favor.

I don’t know how you feel about these decisions, but both Vance and Nassar are distressing to me. With these cases, the Supreme Court restricted two important Title VII provisions—the position of “supervisor” in employee discrimination suits is now narrowly construed, and suits claiming employer retaliation against employee discrimination claims must now adhere more firmly to the Court’s own “but for” principle. These new limitations on Title VII will make it more challenging for employees facing discrimination to bring suit against their employers; a weaker Title VII disadvantages the many minorities who face workplace discrimination on a daily basis. I wish that the Court had exercised a modicum of forethought when deciding Vance and Nassar; these two opinions will be creating challenges for minorities in the workplace for years to come.

About the Author

Lena Barsky hails from Arlington, VA and is a Classics concentrator who graduated in 2014. When not translating the works of Vergil and Ovid, she spends her time keeping tabs on all things judiciary. Her primary areas of interest are the Fourteenth Amendment, questions of federalism, immigration, and combating domestic violence and sexual assault. Ruth Bader Ginsburg is an idol of hers, and her favorite opinions to read are those written by Justice Robert Jackson. Her hobbies include performing in various ensembles on the clarinet, reading anything and everything she can get her hands on, swing dancing, and fighting for women’s rights.