There was lots of attention paid earlier today to the United States Supreme Court's decision in Fisher v. University of Texas, the affirmative action case, which was one of longest-held and most anticipated of the current Term. To the surprise of many, the justices punted on a decisive and divisive ruling in that case, however, deciding instead to kill affirmative action more slowly, and indirectly, by setting up for future failure the University of Texas' admissions policies.
Few laws or policies ever survive the "strict scrutiny" standard that Justice Anthony Kennedy and the Court have just imposed upon Texas university administrators. Barring a major change in the Court's personnel for Fisher v. University of Texas, Part Deux, it is only a matter of time before the Texas policy, and all such admissions policies, are deemed to be too infected by race to survive alongside those lofty "neutral" principles this Court believes should suffice.
My Atlantic colleague, Garrett Epps, has much more today on Fisher, so I would like to focus here instead upon three thematic rulings today that will be otherwise under-reported. In each case, the Court's five-member conservative caucus, already arguably the most pro-business in 75 years, voted in favor of corporate interests and employers over the interests of consumers and employees. In each case, the Court's four liberal members dissented.
Vance v. Ball State University
First there was Vance, a workplace case about a black woman complaining about the actions of a white woman. The plaintiff, Maette Vance, sued under Title VII, the federal law, alleging that she had been subjected to a racially hostile work environment and that Saundra Davis, her alleged tormentor, was her supervisor. Both the federal trial court, and the 7th U.S. Circuit Court of Appeals, rejected Vance's claims, concluding that Davis was not her "supervisor" and thus Ball State University, which employed both women, could not be held vicariously liable.
Writing for the Court's majority, rejecting the recommendation of the Equal Employment Opportunity Commission, and tweaking existing Supreme Court precedent, Justice Alito accepted and then expanded upon the lower courts' narrow definition of the word "supervisor." For purposes of the law and liability, he wrote, a "supervisor" is only someone who can "take tangible employment actions against the victim, i.e. to effect a 'significant change in employment status, such as hiring, firing, failing to promote.'" Here is the link to the ruling.
In dissent, Justice Ruth Bader Ginsburg separated the form from the function. "The Court today," she wrote, "strikes from the supervisory category employees who control the day-to-day schedules and assignments of others, confining the category to those formally-empowered to take tangible employment actions." The decision, she added, "ignores the conditions under which members of the work force labor and disserves the objectives" of the federal statute under which the lawsuit was brought.
What does the ruling in Vance mean? There will now be fewer federal remedies available to workers who allege that their co-workers, people who control what their workday is like, are harassing them. It's a ruling that further insulates businesses and corporations that, for whatever reason, tolerate these practices -- which means that these practices are not only likely to continue but to get worse in some respects. The ball is in Congress' court, Justice Ginsburg wrote, seeking the legislature's help in putting the teeth back into the statute.
Mutual Pharmaceutical v. Bartlett
Next up on the hit parade was Mutual Pharmaceutical v. Bartlett, a case about terrible injuries suffered by a New Hampshire woman named Karen Bartlett who took the medicine "sulindac, a generic nonsterodial anti-inflammatory," which was manufactured by Mutual Pharmaceutical. She sued under a New Hampshire "design defect" law that imposes upon such manufacturers a duty to clearly warn consumers about the dangers of their drugs. She won a $21 million verdict from a federal jury -- a result the 1st U.S. Circuit Court of Appeals upheld but which Justice Alito and his four conservative colleagues today struck down.