Supreme Court report: Affirmative action survives, but the knives are out for Title VII

by on June 24, 2013  •  In Constitutional law, Employment law, Supreme Court
Supreme Court

The Supreme Court finally ruled today in the affirmative action case that it heard last October, producing a 7-1 opinion (Kagan recused) that reads like a compromise, and probably one that was drafted and re-drafted multiple times over the last eight months. Civil rights advocates feared that the Court would overrule its 2003 decision in Grutter v. Bollinger, the last case in which the validity of affirmative action hung on by a thread. Instead,  Justice Kennedy’s opinion in Fisher v. University of Texas retained the Grutter standard, but emphasized that defenders of affirmative action had to prove that there was “no workable race-neutral alternative” in order to successfully defend such a plan.  The case was remanded to the Fifth Circuit for further analysis using that standard. (More analysis by my colleague Sheryll Cashin here.)

Meanwhile, though, what has clearly become a zeal to protect large corporate interests from pesky anti-discrimination claims animated two 5-4 decisions: Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar.  The two opinions limited employer liability by refusing to use a functional, rather than a technical, test for which positions are supervisory, in the context of harassment claims (Vance); and by imposing a heavier burden of proof on plaintiffs in retaliation claims than the statute has set for charges of discrimination (Nassar).

In both, the Court split along the same ideological lines, with the four progressive Justices in dissent. The two opinions read almost as twins: both have dissents written by Justice Ginsburg; both shot down EEOC interpretations of the statute, rejecting them as unpersuasive and thus not entitled to the deference normally due to agency rulings; and both ignored arguments by the Solicitor General, as well as by the parties.

 Of course, these decisions will also apply to lgbt plaintiffs, as well as all others, who sue under Title VII, often using a theory of sex discrimination to reach claims of discrimination based on sex stereotyping. Many of the lgbt cases brought under Title VII involve harassment. Title VII has become an increasingly important tool for lgbt employees who have been harassed or fired.

As she did in the Lily Ledbetter case, Justice Ginsburg called on Congress to amend Title VII to reject these interpretations by clarifying the statute. The first test of support for her effort may come with ENDA. As drafted, ENDA would adopt existing procedural standards from Title VII cases to apply to sexual orientation and gender identity job discrimination claims. Senator Harkin has promised a hearing and mark-up on ENDA next month. If amendments are offered to counter today’s Supreme Court decisions, the ENDA debate may be even more interesting that we had anticipated.

The Court will announce more decisions tomorrow and likely later in the week also.  There are six cases remaining to be announced by the end of this week.

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