US Supreme Court Makes Discrimination & Harassment of Workers Easier

In two decisions which further diminish workers’ rights, the US Supreme Court’s conservative majority has made it easier for employers to harass and discriminate against workers.

First, in Vance v Ball State University, it said Ms. Vance, who was racially harassed day after day, could not recover damages from her employer, because the person who harassed her did not have the power to hire, fire, demote or promote her, (what the Court called “a tangible employment action”) and therefore was not really her “supervisor.” Even though the harasser had the power to assign and oversee her work, the conservative majority said this did not make the harasser a supervisor, and so he was not an “agent” of the employer and the employer was not responsible for his behavior. As Justice Ruth Bader Ginsberg pointed out in a stinging dissent, this is going to leave women, in particular, once again open to harassment by people who oversee their work but are not really their “supervisors” in the way the Court has chosen to define “supervisor.”

In a second case, UT Southwestern Medical Center v Nassar,  the Court took another swipe at workers, ruling that “retaliation” claims against employers, in which workers claim that employers have retaliated against them for whistleblowing about discrimination, are going to be very  difficult to prove. The Court has decided that it is okay to discriminate against a worker in “retaliation” for whistleblowing about discrimination, as long as the employer can make up some other reason for the retaliation. Although the ruling is technical, the practical result is easy enough to describe – more employers will be able to retaliate, and fewer workers will be able to protect themselves against it.

Fortunately, the laws of the State of California are much stricter when it comes to preventing harassment and retaliation against workers. And that means that when these kinds of things happen, workers will have to remember to file complaints at the State’s Department of Fair Employment and Housing (DFEH), and NOT at the Federal government’s Equal Employment Opportunity Commission (EEOC).

By Bill Sokol | June 24, 2013

Legal Developments