Ortiz Reacts to Supreme Court's Decision in Employment Discrimination Case

In a 5-4 decision on Monday, the U.S. Supreme Court ruled against a Ball State University catering assistant who alleged that she was the victim of employment discrimination and who was represented by the University of Virginia School of Law's Supreme Court Litigation Clinic.

The catering assistant, Maetta Vance, alleged that Saundra Davis, a catering specialist, created a racially hostile work environment. Justice Alito, writing for the majority, found that Vance could not claim that Ball State should be liable for Davis' conduct because Davis was not her "supervisor" in that she "did not have the power to hire, fire, demote, promote, transfer, or discipline Vance."

"An employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a 'significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits,'" Alito wrote.

UVA law professor Dan Ortiz, who argued on behalf of Vance at the Supreme Court in November, said Monday's decision represents a "real disappointment — to Ms. Vance and to the clinic."

"We don't think the formalist rule the court adopted is responsive to the realities of the modern workplace, where the people who have the power to take the tangible employment actions the court believes are necessary to make someone else an employee's 'boss,' like the power to hire, fire, promote or set someone's salary, are often in distant human resources departments and have no power over other employees' day-to-day work activities," Ortiz said. "Those who have such day-to-day control are the people who have the most opportunity and power to harass. As Justice Kagan noted at the oral argument, at Harvard, where she was dean, the professors had no power to hire, fire or set the salaries of the administrative assistants, but they could sure make their lives hell."

Ortiz added that the clinic doesn't believe that the "formalistic rule the court adopted will have the advantages of clarity and administrability the majority thought it would."

"After all, the Seventh Circuit, which had already adopted this approach, had found it necessary to complicate it," he said.

Ortiz added: "As the national rule going forward, however, we'll gain much experience with both its virtues and its vices. After time, we hope that Congress will revisit the issue in light of that experience and revise the rule as appropriate."

More on the clinic's involvement in the case: For Workplace Harassment Lawsuits, Court Asks Who Qualifies as a Supervisor in Case Argued by UVA Law Professor

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