What SCOTUS Got Wrong Last Week

Kate McGuinness discusses how the Supreme Court’s redefining of a single word will erode workers’ right to be free of discrimination.

Decisions issued last week by the United States Supreme Court displayed the marked ideological divisions of its members. Progressives decried the evisceration of the Voting Rights Acts and celebrated the DOMA victory but largely overlooked two opinions handed down last Monday that eroded workers’ right to be free of discrimination.

Discrimination and harassment in employment as well as retaliation for complaining about these wrongful acts have long been prohibited under the law. When the employer is a corporation, it acts through individuals. For example, the chief executive officer, the head of personnel and others with authority. This week the Supreme Court tackled—and bobbled—the issue of when an employer can be blamed for the actions of an individual supervisor.             

The case Vance vs. Ball State University presented the question of exactly who is a “supervisor” for purposes of establishing employer liability. If the harassment is not committed by a “supervisor,” the employer walks. It has no liability for the discriminatory actions of one of its employees.

The majority (Justices Roberts, Scalia, Alito, Thomas, and Kennedy) refused to accept the definition of “supervisor” offered by the Equal Employment Opportunity Commission—a supervisor is one who holds authority “of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment.” This can be paraphrased as, I’ll exercise the power given to me by our employer in a way that motivates you to do what I want you to do like having sex with me.

Instead, the majority embraced an extremely narrow meaning of supervisor: one who “the employer has empowered” to “take tangible employment actions against the victim…such as hiring, firing, failing to promote.”

Justice Ruth Bader Ginsburg wrote a brilliant dissent. She noted that the majority decision ignored the realities of the workplace and listed example after dreadful example of exercises of authority by men to motivate sexual compliance by women—men who wouldn’t  fall within the majority’s definition of supervisor. Here’s one of her examples from real life: A female lifeguard who was told that her failure to date a senior male lifeguard would result in her spending entire days cleaning toilets. Another: A woman who objected to sexual advances was denied overtime. And another: a woman denied her scheduled day off.

Justice Ginsburg read her dissent from the bench, a common practice when justices have strong opinions on an issue. Justice Samuel Alito underscored what a triumph the Vance decision was for white males as he shook his head, grimaced, and rolled his eyes toward the ceiling as she read. His behavior was a breach not only of court decorum, but of simple courtesy.

In University of Texas Southwestern Medical Center vs. Nassar, the Supreme Court also strengthened employers’ defenses. The decision undermined employees’ ability to claim that negative job action, such as being fired, was based on retaliation for prior complaints about discrimination or harassment. If another plausible reason for the employer’s decision exists, that’s good enough for the Roberts court. No claim for retaliation would be recognized.

Against this background, it is essential for workers to know what their rights are and how to effectively assert them. I wrote Terminal Ambition to educate women about their right to free of sexual harassment and discrimination.

Again, know your rights and assert them. As Justice Ginsburg said in another context, “Better bitch than mouse.”

Kate McGuinness is a lawyer who spent 17 years at Biglaw before becoming the general counsel of a Fortune 500 corporation. After leaving that position, she studied creative writing and is the author of a legal suspense novel Terminal Ambition, which is available on Amazon.com. The Kindle version of the book is available free on Monday July 1 and Tuesday July 2. She is an advocate for women and tweets as @K8McGuinness.

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