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The Supreme Court on Title VII

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The Supreme Court of the United States issued two 5-4 opinions today to clarify provisions of Title VII of the Civil Rights Act of 1964.

In Vance v. Ball State University, the Court ruled that for an employer to be held vicariously liable in a Title VII hostile work environment claim, the employee accused of the harassment must be one empowered by the employer to take tangible employment actions against the plaintiff.

Justice Alito writing for the majority:

Under Title VII, an employer's liability for such [workplace] harassment may depend on the status of the harasser. If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a "super- visor," however, different rules apply. If the supervisor's harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Under this framework, therefore, it matters whether a harasser is a "supervisor"or simply a co-worker.

It is important to note and reiterate the above quotation that a victim of workplace harassment can still sue an employer under Title VII for harassment by a co-worker rather than a supervisor. The effect of this decision is that the employer will not be strictly (automatically) liable in such a case, but instead will have an affirmative defense available to prove that they, the employer, were not negligent in responding to the complaint of harassing behavior when it was brought to their attention.

In University of Texas Southwestern Medical Center v. Nassar, the Court held that an employee alleging retaliation under Title VII must prove "but for" causation, not the lessened causation test that could be met by proving mixed motives which include retaliation.

Justice Kennedy writing for the majority:

In sum, Title VII defines the term "unlawful employment practice" as discrimination on the basis of any of seven prohibited criteria: race, color, religion, sex, national origin, opposition to employment discrimination, and submitting or supporting a complaint about employment discrimination. The text of §2000e-2(m) mentions just the first five of these factors, the status-based ones; and it omits the final two, which deal with retaliation. When it added §2000e-2(m) to Title VII in 1991, Congress inserted it within the section of the statute that deals only with those same five criteria, not the section that deals with retaliation claims or one of the sections that apply to all claims of unlawful employment practices. And while the Court has inferred a congressional intent to prohibit retaliation when confronted with broadly worded antidiscrimination statutes, Title VII's detailed structure makes that inference inappropriate here. Based on these textual and structural indications, the Court now concludes as follows: Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e-2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.

The two decisions have already prompted angry reactions characterizing these decisions as the Court taking the side of business against the American worker. However, as Walter Olson, senior fellow at the Cato Institute's Center for Constitutional Studies, explains, if SCOTUS came out the other way in these decisions, compliance would be impossible. The Supreme Court seems to have provided clarification where it was sorely needed and like Justice Ginsburg wrote in her dissent in Vance, "the ball is once again in Congress' court" if Congress thinks the Court's interpretation is incorrect.

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