scotus deals blows to workers alleging sexual harassment or discrimination
How The Supreme Court Stomped On Workers’ Rights Today
Monday was a great day for sexual harassers and for bosses who retaliate against workers claiming discrimination. The rest of us did not fare so well in the Supreme Court. While most Court watchers will likely focus on the narrower-than-expected decision in the Fisher affirmative action case, the most lasting impact of today’s decisions likely will be the twin blows struck against women and minorities in the workplace. Taking advantage of employees just became a whole lot easier.
The first case, which we previously labeled the “scariest pending Supreme Court case that you’ve probably never heard of” made it significantly easier for many people’s bosses to racially or sexually harass them and get away with it. Though the law provides fairly robust protection to workers harassed by their supervisor, the Court’s 5-4 decision in Vance v. Ball State University defined the term “supervisor” very narrowly. Under today’s decision, your boss is only your “supervisor” if they have the power to make a “significant change in [your] employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”
The problem with this definition of the word “supervisor” is that it cuts out many individuals who exercise significant power to direct fellow employees — potentially including the power to intimidate those employees against reporting their actions to their employer — just so long as those individuals don’t actually have the power to fire or demote anyone. Justice Ruth Bader Ginsburg’s dissenting opinion lists several examples of now-no-longer-supervisors under Vance. One of them is a senior truck driver who coerced a female subordinate into unwanted sex with him. At oral argument, Justice Elena Kagan gave the example of a secretary whose boss “subjects that secretary to living hell, complete hostile work environment on the basis of sex.” Under today’s decision, the secretary’s boss is not her “supervisor” if the power to fire her rests with the “Head of Secretarial Services.” Don Draper can proposition his secretary with near impunity, so long as Joan Harris is the only one empowered to fire her.
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In a second case, University of Texas Southwestern Medical Center v. Nassar, the same five conservative justices gave employers a freer hand to retaliate against victims of discrimination who report that they have suffered discrimination. Nassar, which involves a physician of Middle Eastern descent who claims that his recent employer withdrew a job offer after he complained about an allegedly racist supervisor who said that “Middle Easterners are lazy,” nixes what are known as “mixed motive” retaliations claims under a key anti-discrimination law. Under the mixed motive framework, an employer cannot automatically escape liability for retaliation if racism, sexism or a similar improper motive was only one of several factors driving a decision to retaliate against an employee.
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http://thinkprogress.org/justice/2013/06/24/2202021/how-the-supreme-court-stomped-on-workers-rights-today/?mobile=nc
