Two Supreme Court decisions make bringing a race or sex discrimination complaint harder.

On Monday the Supreme Court released two cases that affect the way a Title VII case is prosecuted. In Vance v. Ball State University the Court narrowed the definition of a supervisor for the purposes of Title VII. Now a “supervisor” is a person with the power to hire or fire employees under their control. This is important because it makes it harder to hold companies liable for harassment or discrimination caused by their employees. To hold a company liable for a supervisor’s harassment or discrimination against a supervisee after the supervisor has used their power over the supervisee is easy. The company is what’s called “strictly liable” for the supervisor’s harassment or discrimination against a supervisee. On the other hand, to hold a company liable when a co-worker harasses or discriminates against a fellow co-worker, one must prove that the company was somehow negligent in allowing the harassment or discrimination to occur. By narrowing the definition of supervisor the Court has made more workers simple employees effectively raising the burden of proof required in a Title VII case.

In University of Texas Southwestern Medical Center v. Nassar the court ruled on the burden of proof required when trying to prove that retaliation against a worker who engages in protected activity like complaining about harassment or filing an EEOC charge was caused by engaging in the protected conduct. The Court held that the proper standard of proof is the “but for” test rather than the “mixed motives” test codified by Congress in 1991 revisions to Title VII. The mixed motives test allowed a plaintiff to show that the retaliation was based at least in part on the plaintiff engaging in protected conduct. The but for test raises the burden of proof to require that the plaintiff show that but for the protected conduct the retaliation would not have happened. A plaintiff now needs to prove that the retaliation was solely caused by the plaintiff engaging in protected activity. This makes it much more difficult for plaintiffs to prove a retaliation case.

Justice Ruth Bader-Ginsburg wrote strong dissents for both cases. She stressed the the majority’s method of statutory construction and interpretation of the congressional record were rooted in nothing more than a desire to make it more difficult for plaintiffs to file Title VII lawsuits. The Supreme Court has served to make filing an already difficult lawsuit even more difficult. The winners of these decisions are corporate America (these laws don’t apply to business with less than 15 employees).

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