By Jonathan Stempel and Lawrence Hurley
(Reuters) - A sharply divided U.S. Supreme Court on Monday made it harder for workers to sue their employers over alleged harassment and retaliation in the workplace.
In two identical 5-4 votes, the court's conservative majority ruled against a black Ball State University catering assistant who claimed she was harassed on the basis of race, and a University of Texas doctor of Middle Eastern descent who claimed he lost his job in retaliation for complaining of bias.
Both decisions prompted harsh criticism from liberal Justice Ruth Bader Ginsburg, who took the unusual step of reading for eight minutes from the bench from her dissents. She accused the majority of having "corralled" Title VII of the Civil Rights Act of 1964, and called on Congress to undo the damage.
That part of the law prohibits employment discrimination based on race, color, religion, sex and national origin.
"The decisions don't reflect realities of the workplace," said Michael Foreman, a Pennsylvania State University law professor who submitted briefs on behalf of the complaining workers. "They effectively don't protect the right to complain."
Monday's decisions add to a growing list from the court in this and recent terms favoring businesses, including cases involving class-action lawsuits.
"These are good decisions for employers and the economy generally," said Anthony Oncidi, a Proskauer Rose law firm partner in Los Angeles specializing in employment law. "This will help smoke out claims where employees cannot show that but for the alleged illegal actions, they would not have suffered."
In the Ball State case, Maetta Vance, the black employee, had sued over the alleged taunts and threats of physical harm by a white woman she considered to be her supervisor at the university in Muncie, Indiana.
Vance said Ball State eventually retaliated by making her a "glorified salad girl" who cut vegetables and washed fruit.
While the Supreme Court in 1998 said Title VII let harassment victims hold employers responsible for supervisors' improper conduct, it had never defined what a supervisor was.
Writing for the court majority, Justice Samuel Alito adopted a narrower definition of a supervisor than Vance proposed, and upheld a 2011 ruling by the 7th U.S. Circuit Court of Appeals.
He said an employer could be liable "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.'"
The court rejected Vance's argument that a supervisor was anyone with day-to-day oversight of an employee's activities, and what Alito called the U.S. Equal Employment Opportunity Commission's "nebulous" guidance to link supervisory status to the exercise of significant oversight over such work.
'REDUCES THE INCENTIVES'
"It reduces the incentives for employers to police harassment," said Carolyn Shapiro, a professor at the IIT Chicago-Kent College of Law and director of its Supreme Court institute.
Daniel Ortiz, a lawyer for Vance, was not immediately available for comment. Ball State had no immediate comment.
In the Texas case, Naiel Nassar had been employed on the university faculty and as a physician at an affiliated hospital.
He resigned his teaching post amid alleged harassment by a supervisor including comments such as "Middle Easterners are lazy." Nassar said the hospital later withdrew a job offer in retaliation for his having complained about the harassment.
In letting the retaliation claim go forward, the 5th U.S. Circuit Court of Appeals in 2012 said Nassar need only show that retaliation was a motivating factor for the adverse job action.
The Supreme Court set a higher bar. In an opinion by Justice Anthony Kennedy, it said Title VII plaintiffs must show that "but for" having enforced their rights, retaliation would not have happened. He sent the case back to the 5th Circuit.
Brian Lauten, a lawyer for Nassar, said that "we're obviously disappointed" but expressed confidence in prevailing at a second trial. Tom Kelley, a spokesman for Texas Attorney General Greg Abbott, declined to comment.
Both majorities included Alito, Kennedy, Chief Justice John Roberts, and Justices Antonin Scalia and Clarence Thomas.
Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan joined Ginsburg's dissents.
Ginsburg said the majority in the Vance case "relieves scores of employers of responsibility for the behavior of the supervisors they employ," and in the Nassar case "appears driven by a zeal to reduce the number of retaliation claims filed against employers."
Both decisions "should prompt yet another Civil Rights Restoration Act," she said.
Ginsburg had also dissented from the bench in a 2007 case that applied a 180-day limit to claims under Title VII for pay discrimination. Congress reversed that decision in 2009 by passing the Lilly Ledbetter Fair Pay Act, signed into law by President Barack Obama.
The cases are Vance v. Ball State University, U.S. Supreme Court. No. 11-556; and University of Texas Southwestern Medical Center v. Nassar, No. 12-484.
(Editing by Howard Goller and Will Dunham)