In 3 out of 4 decisions released today, the US Chamber of Commerce prevailed over common sense and decency. Should we simply rename it the Supreme Court of the US Chamber?
June 24, 2013

What would June be like if we didn't have landmark, groundbreaking Supreme Court decisions to talk about? Today's session did not include the Big Decisions pending on DOMA, Prop 8, or the Voting Rights Act, but we always have tomorrow, when they will release more opinions.

Today's opinions, however, can only be seen as a complete bow to the United States Chamber of Commerce, who was the beneficiary of 3 out of 4 of their decisions. The 4th, on affirmative action, was a punt back to the circuit court by all of the justices but Justice Ginsberg.

I previewed the case in February 2012 when the Court decided to hear it, and you should review that diary to understand the facts of UT's policy. In short, UT's admissions process beyond its Top Ten Percent policy included a Personal Achievement Index which in turn included a "special circumstances" element which could reflect the socioeconomic status of the applicant and his or her high school, the applicant's family status and family responsibilities, the applicant's standardized test score compared to the average of her high school, and the applicant's race.

According to the Court, the Fifth Circuit erred by treating the UT policy as having been adopted in good faith, and was overly deferential to the university's assertions regarding how the policy worked in practice and how necessary it was. While achieving racial diversity remains a constitutionally permissible goal, Justice Kennedy explained, a more searching review of such policies is required: [Read the rest]

With affirmative action booted downstairs, the court turned to concerns of the US Chamber.

In less than one week, the Supreme Court has issued four decisions immunizing corporate defendants from liability for their wrongdoings and closing the courthouse door to individuals seeking redress. The Court handed victories to the pro-corporate U.S. Chamber of Commerce, which has an unprecedented success rate before the Roberts Court and which filed amicus briefs in all of the cases.

Here are some of the real-world impacts of the decisions they made.

  1. Employees who are harassed may have no recourse in some situations. In Vance v. Ball State University, the court narrowed the circumstances where an employer could be liable for workplace harassment. That makes it far more difficult to deal with situations where co-workers are harassing another employee, because Justice Alito wrote "If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions." When you puzzle that out, it seems clear that harassment and the corresponding intimidation factor can take place and the employer can simply point to their written policies and HR department to excuse themselves from any liability, because as Justice Alito says, the harassers don't have the ability to "hire, fire, demote, promote, transfer or discipline" the person they're harassing.
  2. Pharmaceutical companies don't have to take responsibility for harm done to patients. In Mutual Pharmaceutical Co. v. Bartlett, the court held that a generic drug manufacturer was not liable for the harm done to a patient who took the drug as prescribed and suffered rare, debilitating side effects, because they were not responsible for the drug's design.

    What a case for never taking a generic drug! By passing the design liability back to the original manufacturer, anyone harmed by side effects not described on the label has no recourse to sue anyone for liability. You take the drug; you take your chances.

  3. Employment discrimination is only discriminatory sometimes - This opinion defines a thin motivational line under which an employee can sue for retaliatory discrimination. Essentially, the court ruled that there must be a direct cause and effect to an act of retaliatory employment discrimination rather than a mixed motive for a discriminatory act. SCOTUSBlog explains:

    Title VII has been characterized by a back-and-forth between the Court and Congress, with Congress overruling a number of the Court’s restrictive interpretations of the statute in the past. One such decision was an opinion from the Court that construed Title VII to require employees to prove that the discrimination was the so-called “but for” cause of the employee’s termination, failure to be hired, etc. As a result, even if the employer admitted that race was one of the reasons for refusing to hire the worker, the worker could still lose if the jury believed that the employer would not have hired the worker anyway. Congress reacted to this ruling in 1991 by amending the law to say that all the worker has to show is that discrimination was a “motivating factor” in the employment decision; if so, the worker wins the case, but the employer can avoid having to pay damages if it can show that it would have taken the same action anyway.

    The question in Nassar was whether this provision also applies to claims of retaliation. The Supreme Court held that it does not. Writing for a five-Justice majority, Justice Kennedy explained that the “motivating factor” provision only applies to claims of “discrimination” — which, in this context, means only claims of discrimination based on (for example) race, sex, and religion, rather than retaliation. The decision is based on a close parsing of the statutory text and structure.

The Koch-backed National Federation of Independent Business also cheered the erosive Title VII provisions loudly.

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.”

Both of the Civil Rights Act decisions were split right down the middle, 5-4. Justice Ruth Ginsberg was not very pleased with the majority decision in either case, and read a statement from the bench calling on Congress to fix the damage done. She wrote "Both decisions dilute the strength of Title VII in ways Congress could not have intended..." and that these decisions "corralled Title VII."

In response, Justice Alito decided to be rude and disrespectful in full view of court observers, much like his behavior at the State of the Union address a few years back.

After both opinions had been read, Ginsburg read aloud a summary of her joint dissent in the two cases. She critiqued the Vance opinion by laying out a "hypothetical" (clearly drawn from a real case) in which a female worker on a road crew is subjected to humiliations by the "lead worker," who directs the crew's daily operation but cannot fire or demote those working with him. The Vance opinion, she suggested, would leave the female worker without a remedy.

At this point, Alito pursed his lips, rolled his eyes to the ceiling, and shook his head "no." He looked for all the world like Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand.

While predictions are a fool's errand, I think it's safe to weight opinion on future cases involving business as coming down on the side of employers as long as the court is shaped this way. After all, the conservative side of our Supreme Court loves to waltz with the billionaires.

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