SCOTUS On the Wrong Side of Workplace Harassment

While most of the attention focused on the Supreme Court today will be directed at the surprisingly narrow affirmative action ruling, the Court decided two very important civil rights cases. And not surprisingly, the news was terrible. The conservative majority of the Supreme Court continues to whittle away at civil rights, frustrating the purposes of landmark legislation and making it much more difficult for victims of discrimination to obtain the appropriate redress for violations of their rights.

Both of today's major Civil Rights Act decisions were 5-4, with the Court's Republican appointees comprising the majority and with Ruth Bader Ginsburg authoring a dissent on behalf of the Court's Democratic appointees. Both cases concerned Title VII of the Civil Rights Act, which makes it illegal for employers to discriminate on the basis of "race, color, religion, sex, or national origin." The mere declaration of these rights, however, means little if employees don't have the practical ability to bring lawsuits against their employers. Both of today's holdings interpreted the law to make it much easier for employers to get away with violating the rights of their employees.

The first of today's cases, Vance v. Ball State, concerns the question of who is defined as a "supervisor" for the purposes of civil rights law. This is an important question because under Title VII discrimination by co-workers does not, in itself, constitute a civil rights violation. To create an actionable claim, someone in a supervisory role must discriminate directly, or supervisors must knowingly allow discrimination by co-workers to continue. The statute does not define what constitutes a "supervisor," leaving it to executive agencies and the courts to determine. Maetta Vance filed a suit against Ball State, alleging that her supervisor was responsible for creating a "hostile work environment" in violation of Title VII. In bringing the suit, Vance used the definition of "supervisor" adopted by the Equal Employment Opportunity Commission (EEOC). The EEOC defines a supervisor as an individual with the authority "to undertake or recommend tangible employment decisions affecting the employee" or to "direct the employee’s daily work activities."

The Supreme Court, however, rejected Vance's claim on the grounds that the person allegedly responsible for the hostile work environment did not have a supervisory role for the purposes of civil rights law. Rejecting the EEOC's definiton, Alito's majority opinion instead choose the narrower standard applied by the Seventh Circuit, which held that someone was a supervisor only if "he or she has the power to hire, fire, demote, promote, transfer, or discipline the victim." According to Alito, this rule has the advantage being "more easily administrable the approach advocated by the dissent."

While this may be true, the benefits of making the rule easy to apply are swamped by the fact that the excessively narrow definition of "supervisor" unacceptably undermines civil rights protections. As Ginsburg points out, it is possible to have power over an employee that makes responding to harassment extremely difficult even if this power does not involve hiring, firing, or, disciplining, or transferring:

"Exposed to a fellow employee’s harassment, one can walk away or tell the offender to 'buzz off.' A supervisor’s slings and arrows, however, are not so easily avoided. An employee who confronts her harassing supervisor risks, for example, receiving an undesirable or unsafe work assignment or an unwanted transfer. She may be saddled with an excessive workload or with placement on a shift spanning hours disruptive of her family life. And she may be demoted or fired. Facing such dangers, she may be reluctant to blow the whistle on her superior, whose “power and authority invests his or her harassing conduct with a particular threatening character.”

Alito's definition ignores many of these very real potential exercises of power, and hence ignores the actual conditions of the workplace. Ginsburg's definition, conversely—which had been employed by the COurt in previous cases—is neither difficult to apply nor so broad as to encompass all co-workers as supervisors. Indeed, Ginsburg concedes that one of the people Vance brought suit against was almost certainly not a "supervisor" under her definition. And as Ginsburg shows in Part II B of her dissent, Alito's narrow definition has real and undesirable potential consequences. Ginsburg provides examples of women who were both clearly sexually harassed and subjected to further harassment that falls short of firing or formal discipline: women were denied overtime, focred to work in sub-zero temperatures, denied scheduled days off, given the worst shifts, made positive performance reviews contingent on sexual favors. None of these exercisers of power would qualify as "supervisors" under Alito's definition, effectively demonstrating that it is far too narrow. As Ginsburg observes, Alito's opinion exhibits "remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC’s Guidance," and "will leave many harassment victims without an effective remedy and undermine Title VII’s capacity to prevent workplace harassment."

And there's a final grim irony to today's decision. While Republicans narrow the definition of "supervisor" in the context of civil rights law, they have been busily expanding the definition for the purposes of labor law—because "supervisors" are inelgible for many labor pritections. All that matters is what definition will best abet the ability of employers to deny the rights of employees.

Today's second employment discrimination case, UT Southwestern Medical Center v. Nassar, is equally disturbing. Nassar concerns the provision of civil rights law that makes it illlegal for an employer for retaliating against an employee for opposing (or helping to advance a claim against) an illegal employment practice. Speaking this time through Justice Kennedy, the Court's conservative bloc greatly increased the burden of proof on employees alleging relation. With the support of the longstanding practices of the EEOC, Nassar argued that the standard he should be required to show was that retaliation was "a motivating factor" for an adverse employment action. The Court, however, rejected this standard. Instead, Kennedy argues, Nassar was required to show "but-for" causation—that is, that retaliation was the only factor (as opposed to one of many factors) leading to an adverse employment decision. The burden of proof for alleging retaliation, according to Kennedy, should be substantially higher than the burden of proof necessary to show discrimination itself.

As Ginsburg argues in another devastating dissent, this argument makes little sense, as the majority has perversely interpreted a provision intended to "strengthen" Title VII and "turned it into a measure reducing the force of the ban on retaliation." Kennedy's reading of the statute is inconsistent with the purpose of the law and is hence bad statutory interpretation. His opinion also fails to show proper deference to a plausible interpretation of the law made by the relevant executive agency. Applying different standards to status discrimination and retaliation claims will also make it much more difficult for judges and juries to apply the law. But, of course, none of these legal problems are a deterrent to Republican judges motivated above all by a hostility to civil rights claims. "The Court," Ginsburg correctly argues, "is guided neither by precedent, nor by the aims of legislators who formulated and amended Title VII. Indeed, the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers."

In her dissent in Vance, Ginsburg—invoking the Court's infamous Ledbetter decision, which was ultimately overruled by Congress—calls on Congress to act again: "The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today." Unfortunately, unusually favorable circumstances were necessary for the Lily Ledbetter act to be passed. As long as Republicans control the House of Representatives, it is impossible to imagine Congress similarly responding to today's decisions, although in the medium-term legislation is a necessary goal.

In the meantime, today's Title VII decision are another battle in the long, quiet Republican war against the Civil Rights Act. Politically, it would be impossible for Republicans to repeal the provisions of the Civil Rights Act they dislike. They can, however, use the courts to make the Act far more difficult to enforce, requiring them only to play defense against new legislation, a much easier task. I fear that by the end of the week the Voting Rights Act will be the next example of Republicans in the judicial branch doing the anti-civil rights dirty work for the party.

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