SCOTUS Roundup

June 24, 2013

This morning, the Supreme Court handed down five major decisions, including the controversial and highly-publicized affirmative action case Fisher v. University of Texas.

Before the Court handed down the Fisher decision, everyone believed the affirmative action case was going to be thunderous.  However, it was a whimper at best.  Instead, two decisions concerning the scope of employment discrimination and retaliation claims had us leaning forward in our seats.

So let’s break them down…

Fisher v. University of Texas at Austin

Abigail Fisher, a Caucasian, applied to the undergraduate program at the University of Texas in 2008 and was rejected.  Fisher believed her rejection was because she was white and the school’s “blatant racial rebalancing efforts” resulted in accepting minorities with lesser credentials. The issue before the Court was whether the University of Texas at Austin’s use of race as one factor in its undergraduate admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment.

Sound familiar? That’s because the university’s admission policy was based on the Court’s ruling in Grutter v. Bollinger, a case in which the Court concluded the University of Michigan was permitted to use race as a “plus factor” in its admissions decision.

In this case, Fisher believed that the policy went beyond Grutter because the university had a diverse student body without having to consider race in its admission criterion, thanks in large part to the Top Ten Percent Law that automatically admits any Texas high school student who graduates in the top ten percent to a state-school.  Accordingly, Fisher argued there is no a compelling interest to maintain a race-based affirmative action policy.

In a 7-1 opinion, the majority opinion written by Justice Anthony M. Kennedy vacated and remanded the case back to the Fifth Circuit Court of Appeals.  What does that mean?  The Court sent the case back to the lower federal appeals court in New Orleans to consider whether the university could have used any “race neutral” means of creating a diverse student body, which is more stringent than what the court actually did:

“Strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”

Put another way, the Court said that it “does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice.”

Justice Ginsburg, the lone dissenter, vehemently wrote that the Top Ten Percent Plan Fisher believes is race-blind is greatly misplaced: “I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconsciousness” because of the state’s history of de facto segregation in schools and local communities.

What does Fisher tell us? Some may argue the Court punted because it ultimately did not decide the issue.  But its instructions to the lower court will now tell other courts how to analyze similar cases involving affirmative action in education.  In other words, while the UT’s program can continue as is, it will have to show a narrowly tailored approach to achieve diversity.

Narrowing Employee Civil Rights

Today ushered in two decisions that also involved but focused on the interpretation of Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of race, color, sex, national origin and religion.  These types of claims include not just discrimination in hiring, pay and promotion and firing, but also in cases involving retaliation against employees.

Vance v. Ball State University  

Vance v. Ball State University involved Maetta Vance, a black woman, who worked in catering at the University.  She contended that her supervisor slapped her and used racial epithets.  Vance sued Ball State under Title VII, arguing the university was negligent in responding her complaints of a hostile work environment.

The Court disagreed with Vance.

In a 5-4 decision, the Court held that an employer is vicariously liable for actions of a supervisor, which they define as someone responsible for hiring and firing employees:

“We hold 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.”

According to the majority opinion, delivered by Justice Samuel Alito, reporting to someone on the job does not mean an employer will be liable for discrimination caused by him or her.  This, in essence, makes it virtually impossible to sue for discrimination if it was committed by a co-worker.

Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented, arguing that anyone who controls the day-to-day operations and management of employees should be considered a supervisor, and that therefore the employer should be held responsible.

University of Texas Southwestern Medical Center v. Nasser

The second case, University of Texas Southwestern Medical Center concerned Dr. Naiel Nassar, a faculty member and staff physician at Parkland Hospital.  Dr. Nasser claimed his supervisor made derogatory comments about his Middle Eastern descent.  He claims that he arranged to resign from his position at the University and become employed directly by the medical center, which, more practically meant he would report to a different supervisor.  After the hospital received his resignation letter which detailed his accusations, the hospital withdrew its offer.

The Court, also split 5-4, ruled that to prevail in a retaliation case, an employee-plaintiff must show that “but for” the retaliation case he would not have been fired. Justice Anthony M. Kennedy wrote the majority opinion and explained that this standard means an employee “must establish that his or her protected activity was the cause of the alleged adverse action by the employer.”  In this case, Dr. Nassar needed to prove to jury that “but for” his resignation letter, the hospital would not have withdrawn its job offer.

What do Vance and Nassar tell us?

These decisions are controversial because they make it harder to sue employers for discrimination.  My research shows that success rate for plaintiffs in employment discrimination lawsuits is profoundly low: one study reports that only 2% for plaintiffs who file in federal court win at trial.  These rulings may reduce that statistic even more.

According to Justice Ginsburg, the Court “corralled Title VII,” a law meant to eliminate workplace inequality.  She said, “[b]oth decisions dilute the strength of Title VII in ways Congress could not have intended.”  And in a rare moment, Ginsburg made bench statement reported by SCOTUSblog, calling upon Congress to create laws that override the Court’s decisions.  “Today, the ball again lies in Congress’ court to correct this court’s wayward interpretations of Title VII.”