The Building Tradesman Newspaper

Friday, July 12, 2013

Supremes issue two employer-friendly rulings on worker harassment

By The Building Tradesman

Two Supreme Court rulings issued late last month have made it easier for employees to be harassed in the workplace and reduced the legal recourse those workers have to end harassment, the AFL-CIO said.

In two separate 5–4 rulings, in which the conservative justices sided against workers, the court made it harder to take recourse against a supervisor who is harassing a worker, and made it easier for bosses to punish workers who complain about discrimination.

In the first case, Vance v. Ball State University, the court ruled workers only are protected against a supervisor who has the power to make “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,” or if the company ignores the fact a supervisor without this power is engaging in harassment.

“This very narrow definition of ‘supervisor’ makes remedying harassment more difficult and ignores the reality that many supervisors without hiring and firing power have the ability to make an employee's life much more difficult,” the AFL-CIO said.

Added a U.S. article: “The Supreme Court today – in a 5-4 decision – delivered another victory to corporate America. In Vance v. Ball State University, the court made it more difficult for employees to sue their employers over harassment in the workplace, the latest instance in which Chief Justice John Roberts and the court’s conservatives have pledged fealty to business interests, to the detriment of American workers.”

During oral arguments, according to US News, Justice Elena Kagan cited the abuse of a secretary whose boss “subjects that secretary to living hell, (a) complete hostile work environment on the basis of sex, but because the choice of hiring or firing her lies elsewhere, is able to get away with it.”

Justice Samuel Alito wrote for the court majority, all GOP-nominated men. “The concept of a supervisor adopted today is one that can be readily applied,” he said. “An alleged harasser’s supervisor sta­tus will often be capable of being discerned before or soon after liti­gation commences and is likely to be resolved as a matter of law be­fore trial.”

Dissenting Judge Ruth Bader Ginsburg said, "the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ."

The second case, University of Texas Southwestern Medical Center v. Nassar, eliminated so called "mixed motive" retaliation claims under existing anti-discrimination law. Employees who pursue discrimination claims now will have to prove that discrimination was the sole thing on their boss's mind when they were fired or demoted.

Previously, discrimination only had to be one factor involved in punishing an employee and bosses were required to reveal what they were thinking at the time of the punishment.

As Justice Ginsburg pointed out in her dissent, that standard is almost impossible to meet, since few people in the real world are motivated by a single cause.

(The AFL-CIO and Press Associates contributed).