SUPREME COURT NOTEBOOK

Court makes it harder to sue businesses By Jesse J. Holland Associated Press WASHINGTON (AP) -- A sharply-divided Supreme Court on Monday made it more difficult for Americans to sue businesses for discrimination and retaliation, leading a judge to call for Congress to overturn the court's actions. The court's conservatives, in two 5-4 decisions, ruled that a person must be able to hire and fire someone to be considered a supervisor in discrimination lawsuits, making it harder to blame a business for a coworker's racism or sexism. The court then decided to limit how juries can decide retaliation lawsuits, saying victims must prove employers would not have taken action against them but for their intention to retaliate. Justice Ruth Bader Ginsburg, who wrote both dissents for the court's liberal wing and in a rare move read one aloud in the courtroom, said the high court had "corralled Title VII," a law designed to stop discrimination in the nation's workplaces. "Both decisions dilute the strength of Title VII in ways Congress could not have intended," said Ginsburg, who called on Congress to change the law to overturn the court. In the first case, Maetta Vance, who was a catering specialist at Ball State University, accused a co-worker, Shaundra Davis, of racial harassment and retaliation in 2005. Vance sued the school under the Civil Rights Act of 1964, saying the university was liable since Davis was her supervisor. But a federal judge threw out her lawsuit, saying that since Davis could not fire Vance, she was only a co-worker, and since the university had taken corrective action, it was not liable for Davis' actions. The 7th Circuit upheld that decision, and Vance appealed to the Supreme Court. But Justice Samuel Alito, who wrote the majority opinion, said for the university to be liable, Davis must have had the authority to "hire, fire, demote, promote, transfer, or discipline" Vance. "We hold that an employee is a 'supervisor' for purposed of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim," Alito said. "Because there is no evidence that BSU empowered Davis to take any tangible employment actions against Vance, the judgment of the Seventh Circuit is affirmed." Alliance for Justice President Nan Aron said the court made the wrong decision. "Deferring to the powerful at the expense of the powerless, the Supreme Court majority has imposed heavier burden for victims of workplace harassment and discrimination seeking justice in our courts," she said. "This decision makes it far easier for employers to evade responsibility for discrimination and harassment in the workplace." In the second case, the University of Texas Southwestern Medical Center wanted a discrimination lawsuit won by Dr. Naiel Nassar thrown out. Nassar left in 2006 after complaining of harassment, but Parkland Hospital withdrew its job offer after one of his former supervisors opposed it. Nassar sued, saying the medical center retaliated against him for his discrimination complaints by encouraging Parkland to take away his job offer. A jury awarded him more than $3 million in damages. The medical center appealed, saying the judge told the jury it only had to find that retaliation was a motivating factor in the supervisor's actions, called mixed-motive. Instead, it said, the judge should have told the jury it had to find that discriminatory action wouldn't have happened "but-for" the supervisor's desire to retaliate for liability to attach. Justice Anthony Kennedy, who wrote the opinion, agreed with the lower court and the university, saying people "must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer." But he didn't rule completely for the medical center, sending the case back to the lower courts after saying a decision on the resolution of the case "is better suited by courts closer to the facts of this case." Karen Harned, executive director of the National Federation of Independent Business' Small Business Legal Center, cheered the decision. "If courts were allowed to label employees with little managerial authority as 'supervisors,' that would have substantially increased the number of frivolous lawsuits brought against small businesses and would have done little, if anything, to reduce harassment," she said. "For small businesses, the increased possibility of liability and ensuing costs would have been devastating. We are very pleased with the Supreme Court's decision." Kennedy, Alito, Chief Justice John Roberts, and Justices Antonin Scalia and Clarence Thomas voted together in those cases. Ginsburg, and Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented together both times. Ginsburg said she hopes Congress intervenes in both cases, just as it did in past Title VII cases. "Today, the ball again lies in Congress' court to correct this court's wayward interpretations of Title VII," she said. The cases are Vance v. Ball State University, 11-556 and University of Texas Southwestern Medical Center v. Nassar. Justices send back Texas race-based plan By Mark Sherman Associated Press WASHINGTON (AP) -- Affirmative action in college admissions survived Supreme Court review Monday in a consensus decision that avoided the difficult constitutional issues surrounding a challenge to the University of Texas admission plan. Justice Anthony Kennedy wrote the court's 7-1 ruling that said a court should approve the use of race as a factor in admissions only after it concludes "that no workable race-neutral alternatives would produce the educational benefits of diversity." But the decision did not question the underpinnings of affirmative action, which the high court last reaffirmed in 2003. The justices said the federal appeals court in New Orleans did not apply the highest level of judicial scrutiny when it upheld the Texas plan, which uses race as one among many factors in admitting about a quarter of the university's incoming freshmen. The school gives the bulk of the slots to Texans who are admitted based on their high school class rank, without regard to race. The high court ordered the appeals court to take another look at the case of Abigail Fisher, a white Texan who was not offered a spot at the university's flagship Austin campus in 2008. Fisher has since received her undergraduate degree from Louisiana State University. Justice Ruth Bader Ginsburg was the lone dissenter. "In my view, the courts below adhered to this court's pathmarking decisions and there is no need for a second look," Ginsburg said in a dissent she read aloud. Justice Clarence Thomas, alone on the court, said he would have overturned the high court's 2003 ruling, though he went along with Monday's outcome. Justice Elena Kagan stayed out of the case, presumably because she had some contact with it at an earlier stage when she worked in the Justice Department. Kennedy said that courts must determine that the use of race is necessary to achieve the educational benefits of diversity, the Supreme Court's standard for affirmative action in education since 1978. The high court most recently reaffirmed the constitutionality of affirmative action in Grutter v. Bollinger in 2003, a case involving the University of Michigan. "As the Court said in Grutter, it remains at all times the university's obligation to demonstrate, and the judiciary's obligation to determine, that admissions processes 'ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application,'" Kennedy said. University of Texas president Bill Powers said the university plans no immediate changes in its admissions policies as a result of Monday's ruling and will continue to defend them in the courts. "We remain committed to assembling a student body at the University of Texas at Austin that provides the educational benefits of diversity on campus while respecting the rights of all students and acting within the constitutional framework established by the court," Powers said. But Edward Blum, who helped engineer Fisher's challenge, said it is unlikely that the Texas plan and many other college plans can long survive. "The Supreme Court has established exceptionally high hurdles for the University of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admissions policies, said Blum, director of The Project on Fair Representation in Alexandria, Va. Civil rights activist Al Sharpton said the court "ducked" the big issues in the case. While he would have preferred that the justices affirm the use of race in college admissions, "a duck is better than a no, but not as good as a yes," Sharpton said. Sharpton, along with Martin Luther King III, was leading a National Press Club news conference announcing initial plans to commemorate the 50th anniversary of the march on Washington. Retired Justices Sandra Day O'Connor and John Paul Stevens, both members of the majority in the Grutter case, were in the courtroom Monday for the Texas decision. The challenge to the Texas plan gained traction in part because the makeup of the court has changed since the last time the justices ruled on affirmative action in higher education in 2003. Then, O'Connor wrote the majority opinion that held that colleges and universities can use race in their quest for diverse student bodies. O'Connor retired in 2006, and her replacement, Justice Samuel Alito, has shown himself to be more skeptical of considerations of race in education. Texas automatically offers about three-quarters of its spots to high school graduates based on their class rank as part of what was called the "top 10 percent" plan under a 1990s state law signed by then-Gov. George W. Bush. Since then the admissions program has been changed so that now only the top 8 percent gain automatic admission. Race is a factor in filling out the rest of the incoming class. More than 8 in 10 African-American and Latino students who enrolled at the flagship campus in Austin in 2011 were automatically admitted, according to university statistics. In all, black and Hispanic students made up more than a quarter of the incoming freshmen class. White students constituted less than half the entering class when students with Asian backgrounds and other minorities were added in. The university said the extra measure of diversity it gets from the slots outside automatic admission is crucial because too many of its classrooms have only token minority representation, at best. At the same time, Texas argued that race is one of many factors considered and that whether race played the key role in any applicant's case was impossible to tell. The Obama administration, roughly half of the Fortune 100 companies and large numbers of public and private colleges that feared a broad ruling against affirmative action backed the Texas program. Among the benefits of affirmative action, the administration said, is that it creates a pipeline for a diverse officer corps that it called "essential to the military's operational readiness." In 2003, the court cited the importance of a similar message from military leaders. Court says no to generic drug design lawsuits WASHINGTON (AP) -- The Supreme Court says generic drug manufacturers can't be sued in state court for a drug's design defects if federal officials approved the brand-name version the generic drug copied. The justices voted 5-4 to agree with generic manufacturer Mutual Pharmaceutical Co, Inc., which wanted a $21 million judgment against it dismissed. A New Hampshire jury gave that to Karen L. Bartlett after she took sulindac, the generic form of the drug Clinoril, in 2004. It caused her outer skin layer to deteriorate and burn off, leaving at least 60 percent of her body as an open wound. She is also now legally blind. The federal appeals courts upheld her verdict, but the justices said federal law pre-empts the New Hampshire law that allowed Bartlett's lawsuit. Appeal over added ethanol in gasoline nixed WASHINGTON (AP) -- The U.S. Supreme Court has rejected challenges to Environmental Protection Agency decisions allowing an increase in ethanol content in gasoline. The justices on Monday left in place a federal appeals court ruling that dismissed challenges by trade associations representing the oil industry, food producers, restaurants and others to EPA decisions allowing a gasoline blend of up to 15 percent ethanol. The national gasoline supply is largely a blend with 10 percent ethanol. Death sentence reinstated by court WASHINGTON (AP) -- The Supreme Court has reinstated a death sentence for an Arizona man who was convicted of killing a man 35 years ago. The justices' action on Monday is the court's latest skirmish with the federal appeals court in San Francisco over delays in Arizona's efforts to execute Edward Schad. The court says in an unsigned opinion that the 9th U.S. Circuit Court of Appeals must step away from Schad's case and allow the state to proceed. The high court had once before thrown out a 9th Circuit ruling in Schad's favor. Published: Tue, Jun 25, 2013