The “Wayward” Supreme Court

I was planning on writing something fun and light-hearted this week – it’s mid-summer, the sun is shining (occasionally), Mainers are grilling and gardening and congregating with friends and family.  But the Supreme Court’s recent decisions on workers’ rights have put me in a distinctly less celebratory mood.

Although they wear robes, Supreme Court Justices are only human, and like many of us, they often leave the hardest decisions until the last minute.  The very last week of the Court’s term brought a slew of important and long-awaited opinions.  The news headlines have focused on two of the Court’s biggest decisions, striking down the Defense of Marriage Act (DOMA) and invalidating a key portion of the Voting Rights Act of 1965.

But those were not the only important cases decided in the last week of their term – the Court also decided two major cases on workers’ rights, and both weaken protections for workers.

First, in Vance v. Ball State University, the Court addressed the definition of a “supervisor.” The distinction between a “supervisor” and a “co-worker” may seem academic, but it can have very real consequences in workplace harassment cases.  If the person harassing you is considered a “supervisor,” then your employer is automatically liable for the harassment, unless the employer can prove that it promptly and adequately addressed the harassment. On the other hand, if the harasser is considered just a “co-worker,” then the employer is only liable if you can show that the employer acted negligently – in other words, that it knew about the harassment and failed to properly address it.

The Court sided with the employer in Vance, deciding that “supervisors” are only those with the power to hire and fire.  The Court rejected the employee’s argument that the definition of “supervisor” is broader than that, and should include individuals who have the authority to direct and oversee the employee’s daily schedule and assignments.  The Court’s decision makes it harder to hold employers responsible for workplace harassment.  And perhaps even worse, it ignores the reality of today’s workplaces. Many individuals whom we all would consider to be “supervisors” – people who tell us when to show up for work, what assignments to perform when we get there, and how to perform them, but who do not have formal authority to hire and fire – are now just “co-workers” according to the Supreme Court.

Second, in University of Texas Southwest Medical Center v. Nassar, the Court addressed how employees can prove retaliation claims.  Again, the Court sided with the employer, holding that the employee had to prove that his complaint of workplace harassment was the “but for” cause of his termination and not just a “motivating factor” in the decision.  In other words, it is not enough for an employee to show that she was terminated because of multiple factors, one of which was retaliation.  Rather, the employee must show that retaliation was the proverbial straw that broke the camel’s back.  This defies common sense.  We rarely act for one reason and one reason alone.  If the desire to retaliate is one of the factors motivating a supervisor’s decision making, even if not the only one, then our civil rights laws should prohibit those kinds of tainted employment decisions.

Justice Ruth Bader Ginsburg, who dissented in both decisions, said it best: “Both decisions dilute the strength of Title VII [the Civil Rights Act of 1964] in ways Congress could not have intended… the ball again lies in Congress’ court to correct this Court’s wayward interpretations of Title VII.”  Hopefully, Congress will do so—but I’m not holding my breath.  Until then, workers’ rights have been significantly weakened. 

If you believe your rights have been violated, contact us.

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