In two 5-4 decisions, Supreme Court narrows Title VII protection against harassment and retaliation

By Charlotte Fishman

What Senator Warren has labeled “the Corporate Capture of the Federal Courts”  was on full display at the United  States Supreme Court today.  The Court issued Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar, two 5-4 pro-employer decisions authored by Justice Samuel Alito and Justice Anthony Kennedy, respectively.  Justice Ginsburg authored two impassioned dissents that she read from the bench.

To attorneys who represent victims of discrimination of harassment  and retaliation, these decisions illustrate a depressingly familiar scenario of judicial bias:    the majority is far more concerned with protecting employers from lawsuits than vindicating employees’ statutory right to be free from discrimination and retaliation.

In Nassar, Justice Kennedy’s words convey solicitude for the welfare of employers that is in sharp contrast to his disdainful view of employees:  “The fair and responsible allocation of resources in the judicial and litigation system” requires raising the standard for retaliation claims because “[i]t would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent.”

The majority’s lack of comparable concern for the “financial and reputational” cost of retaliatory harrassment to the employee is noteworthy, as is its unquestioning acceptance of the hypothetical danger rarely, if ever, encountered by employee-side practitioners:  “Consider…the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location.  To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination: then when the unrelated employment action comes, the employee could allege that this is retaliation.”

In Ball, Justice Alito’s opinion reveals the majority’s staggering ignorance of (or indifference to) the power of low level supervisors to use their employer-delegated authority to harass employees under their control.  The opinion limits employer’s vicarious liability for workplace harassment to the actions of supervisors who have the power to “hire, fire, demote, promote, transfer or discipline.”   In so ruling, the Court threw out EEOC Enforcement Guides in effect since 1999, and made it harder for employees to obtain redress for harassment by defining individuals who control day-to-day schedules and assignments as mere “co-workers.”

The tendency of the federal courts to favor corporate interests over that of individuals has become the subject of increasing public concern, and today’s decisions provide additional fuel for the argument that  we need greater experiential diversity on the federal bench.  Hopefully, Congress will accept Justice Ginsburg’s invitation to “correct this Court’s wayward interpretations of Title VII” and  restore the Title VII protections that are weakened by today’s cases.  But in the long run, what is needed to restore balance to our judicial system is the appointment of federal judges who are better attuned to the rights of individuals.

Charlotte Fishman

About Charlotte Fishman

Charlotte Fishman is a San Francisco attorney with over 30 years of experience handling employment discrimination cases on the plaintiff side. In 2005 she launched Pick Up the Pace, dedicated to overcoming barriers to women’s advancement in the workplace through legal advocacy and public education. She has authored amicus curiae briefs in major cases before the United States and California Supreme Court and writes and speaks to a wide audience on cutting edge employment issues affecting women.

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