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Although most of the media attention yesterday focused on the Supreme Court’s affirmative action decision in Fischer v. University of Texas, the Court’s more troubling decisions came in a pair of cases on workplace discrimination. Individually, each case might seem benign. But the Court knew about both as they decided each, and taken together the decisions offer employers a blueprint for discrimination.

Vance v. Ball State University

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This case involved a lawsuit filed Maetta Vance, a black woman working in food service at Ball State University. In her suit, Vance alleged that she was subjected to race-based harassment by a white colleague, Saundra Davis. The case turned on the standard of liability for her employer, Ball State University, and whether Davis was Vance’s “supervisor.”

In cases of peer-to-peer workplace harassment, an employer is liable only if the employer was negligent. This is a two-part test: (1) whether employer knew or should have known about the harassment; and (2) whether the employer failed to take remedial action to stop it.

That standard changes if the harasser is a “supervisor,” whom the law considers an agent of the employer. Simply, the employer is presumed to know when a supervisor harasses an employee, and the employer is liable unless he can prove an affirmative defense such as having taken remedial action.

The five conservative Justices held that, for purposes of determining the liability standard in workplace harassment, a “supervisor” must have the authority 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.”

Although she sometimes directed Vance’s activities, Davis did not have authority to take those “tangible employment actions.” Thus she was not Vance’s “supervisor,” the Court held, and Ball State would only be liable for discrimination if they were negligent: knew or should have known, and failed to take remedial action.

Vance had filed complaints about other actions by Davis, and the university had responded to those complaints. Both the Seventh Circuit and the Supreme Court found that the university was not negligent in the specific incidents alleged in Vance’s lawsuit. Basically, the Court concluded that the university would have responded to these specific incidents, had Vance filed complaints about them.

University of Texas Southwest Medical Center v. Nassar

This case involved Naiel Nassar, an Arab Muslim physician on the faculty at a University of Texas teaching hospital. In 2004, Beth Levine became Nassar’s ultimate (though not direct) supervisor. She made several derogatory comments about Nassar’s background and religion. Nassar complained to Gregory Fitz, Levine’s supervisor, and began negotiating with the university to work at the hospital without remaining on the faculty. Nassar thought they had reached an agreement to that effect, and in 2006 he resigned from the faculty and accepted a staff position with the hospital. In his resignation letter to Fitz, Nassar cited Levine’s “religious, racial and cultural bias against Arabs and Muslims.”

Fitz was upset by Nassar’s letter, which he said had “publicly humiliated” Levine, and wrote to the hospital saying it as “very important that she be exonerated.” The hospital reviewed its affiliation agreement, determined that hospital staff doctors must be university faculty, and withdrew Nassar’s job offer.

The trial court found the university liable for constructive discharge – they made Nassar uncomfortable enough to quit – and had retaliated after his discrimination complaint by urging the hospital to withdraw his job offer. The Seventh Circuit Court of Appeals held there was insufficient evidence to support the constructive discharge claim, but that Nassar had proved the university retaliated against him and that was a contributing motive in their actions.

Here the issue was whether proving retaliation as a “contributing motive” was enough to establish liability, or whether Nassar was required to meet the stricter “but for” test. The stricter test allows an employer to escape liability of they can show some other, legitimate reason for the action. If that other reason exists, under the “but for” test, the retaliation motive becomes legally irrelevant.

Congress specified the “contributing motive” standard in a 1998 amendment to the Civil Rights Act. However, the Court held that Congress had only specified that standard for five other employment decisions – such as hiring, firing, or promotion – and not for retaliation. Thus, the Court held, the stricter “but for” standard must be applied for charges of retaliation.

The Court held that the affiliation agreement requiring hospital staff to be university faculty was a legitimate reason for the university to object to the hospital offering Nassar a staff position. Thus, while Fitz and the university were plainly retaliating for Nasser’s discrimination complaint, they could have acted on other grounds … and their retaliation was legally irrelevant.

Putting the pieces together

The Court deliberated on Vance and Nassar at the same time, and released the cases on the same day. Thus, we should consider how the two cases may be read together. And together they offer a blueprint for discrimination:

Allow workplace harassment, while documenting any harassed employees’ actions that might justify dismissal.

If the employee files no complaint at work, but instead quits and files a case with the EEOC, cite Vance and get the case dismissed.

If the harassed employees file a complaint, fire them in retaliation – and for those other documented actions – and cite Nassar.

Together, these cases offer excellent cover for employers who want to discriminate … and precious little protection for employees.