On Monday, the Supreme Court issued two rulings that led Associate Justice Ruth Bader Ginsburg to beg Congress to overturn with written legislation. In one case, a 5-4 decision ruled that retaliation claims must be won on a "but-for" basis, and in another case, the same 5-4 majority established that discrimination must originate from a supervisor with hiring and firing authority to be valid.
In University of Texas Southwestern Medical Center v. Nassar, the court ruled that employees must prove in court that "but for" retaliation, there would be no motivation in an adverse employment action for which they are seeking redress. This is a higher burden of proof that the "mixed motivation" standard under which Dr. Naiel Nassar won a $3 million judgment. The lower court must now retry the case.
In the discrimination case, the court grappled with the issue of what defines a supervisor, and in the end the majority decided that only a supervisor with the power to hire, fire, promote, transfer or discipline workers can be liable for discrimination under Title VII of the Civil Rights Act of 1964.
In the case under review, a catering specialist had sued her employer, Ball State University, because of "racial harassment" by her "supervisor," but both a federal judge and the 7th U.S. Circuit Court of Appeals ruled that the lawsuit was invalid because the supervisor was merely a coworker whose actions had been corrected by the university. Therefore, the university was not liable. The 5-4 Supreme Court majority agreed.
This prompted Justice Ginsburg to call on Congress for redress, saying: "The court's disregard for the realities of the workplace means that many victims of workplace harassment will have no effective remedy."