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.
Because it imposed duties upon the drug manufacturer that were inconsistent with the manufacturer's duties under federal law, Justice Alito wrote, the New Hampshire law was necessarily preempted by federal law. State law required the company to change its label, he noted, but federal law, and the Court's recent precedent, required that it not do so. "When federal law forbids an action that state law requires," Justice Alito wrote, "the state law is without effect." Here is the link to the ruling.
It generated not one but two dissents. To Justice Stephen Breyer, it was unclear whether the Food and Drug Administration even wanted to have federal law preempt state law to favor the drug manufacturer and penalize Bartlett. And the company itself had a choice. It could "comply with both" federal and state law "either by not doing business in the relevant state or by paying the state penalty, say damages, for failing to comply with, as here, a state-law tort standard." What does Bartlett mean? In her own dissent, Justice Sonia Sotomayor explained:
The Court appears to justify its revision of respondent Karen Bartlett's state-law claim through an implicit and undefended assumption that federal law gives pharmaceutical companies a right to sell a federally approved drug free from common-law liability. Remarkably, the Court derives this proposition from a federal law that, in order to protect consumers, prohibits manufacturers from distributing new drugs in commerce without federal regulatory approval, and specifically disavows any intent to displace state law absent a direct and positive conflict.
UT Southwestern Medical Center v. Nassar
Which brings us, finally, to the Nassar case. It is a direct cross between the Vance and Bartlett cases -- it involves the workplace discrimination at the heart of Maetta Vance's case against Ball State Univerity and the federal jury verdict that was the centerpiece of Nancy Bartlett's case against the pharmaceutical manufacturer. Again, the Supreme Court limited corporate liability. And again it did so by turning an acknowledged remedial measure -- Title VII -- from a sword for plaintiffs into a shield for defendants.
There is no evident dispute that Naiel Nassar, a doctor "of Middle Eastern descent," was treated poorly at work. At least that is what a federal jury found when it awarded him $3.4 million in a discrimination case. In voiding this verdict, Justice Anthony Kennedy, writing for the Court's majority, ruled that the lower courts had applied a standard of review that was too generous to Nassar on the issue of causation. He hadn't sufficiently proved, the Court said, that he was retaliated against. Here is the link to the ruling.
In her dissent in Nassar, Justice Ginsburg again sought to defend the purposes of the federal anti-discrimination law. Against she cited EEOC scripture that broadened the interpretation of the "causation" standard Justice Kennedy narrowed. "It is strange logic indeed to conclude," she wrote, "that when Congress homed in on retaliation and codified the proscription, as it did in Title VII, Congress meant protection against that unlawful employment practice to have less force than the protection available when the statute does not mention retaliation."
What does the ruling in Nassar means? It means that federal anti-discrimination law suffered a double-blow at the Supreme Court today. Plaintiffs not only are limited in which "supervisors" they can point to, but also in the ways in which they can prove that they have been damaged by discrimination. And all three decisions here, taken together, mean that the Roberts Court has once again come to the rescue of business.