When the Supreme Court starts handing down decisions just one hour from now, most Court watchers will be awaiting four high profile cases — the two race cases that will decide the fate of affirmative action and the Voting Rights Act, and the two marriage equality cases. A fifth case, however, could prove just as significant as these much better known cases — and could potentially leave thousands of workers virtually helpless in the face of racial and sexual harassment.
The law provides very robust protections to employees who are harassed by their supervisors, but it is drastically more difficult for an employee to win a racial or sexual harassment lawsuit if they have only been harassed by coworkers. In the later case the worker must show that their employer has “been negligent either in discovering or remedying the harassment.” For this reason, it matters a great deal who qualifies as a “supervisor” for purposes of sexual harassment law. If the word is defined too narrowly, it could encompass employees who have the power to intimidate their victims into keeping their harassment secret.
That’s more or less what the lower court did in Vance v. Ball State University, which is now pending before the Supreme Court. According to the United States Court of Appeals for the Seventh Circuit, a “supervisor” is someone whose authority “primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee.” Employees who can assign tasks to other workers, or even those who direct their day to day activity, don’t count.
It’s not difficult to imagine what could happen if the Supreme Court upholds this rule. At oral argument, Justice Elena Kagan raised the hypothetical of a secretary who works for a professor, and the professor “subjects that secretary to living hell, complete hostile work environment on the basis of sex.” Under the Seventh Circuit’s rule, this professor nonetheless does not qualify as a “supervisor” if the secretary can only be fired by a bureaucrat with the job title “Head of Secretarial Services,” even if the professor directs every minute of the secretary’s day. The plaintiff in Vance alleges a similar situation. She worked in a university kitchen, and claims that a racist supervisor assigned her to menial tasks such as chopping vegetables, rather than more desirable tasks such as preparing meals or baking items from scratch, because that supervisor wanted to lash out against her for being black.
There are two mitigating factors in Vance which may prevent the justices from using it as a vehicle to limit workers’ rights. The first is the fact that it is not at all clear that the plaintiff’s alleged “supervisor” should be considered a supervisor under any definition of the term — the so-called “supervisor” may not have actually had the power to assign tasks to other workers. This suggests that the issue of who qualifies as a “supervisor” may not actually be present in this case at all, so the Court will have to wait until another case to resolve this question. The second mitigating factor is that the Seventh Circuit’s rule is so harsh that even the lawyer for the defendant in this case — a former Solicitor General under George W. Bush — would not endorse it.
Nevertheless, the U.S. Chamber of Commerce submitted a brief calling for the Supreme Court to embrace the Seventh Circuit’s rule, and the Chamber has an unusually high win rate before the conservative Roberts Court. If the justices side with the Chamber in this case, it could drastically impede workers’ ability to stand up to harassment. A woman’s boss could grope her, make sexist jokes and assign her to demeaning tasks, and her employer could nonetheless be immune from suit if the only person who can technically fire her is some unknown official in the company’s HR department.
The opinion is out, and it is as bad as it can possibly be. The Seventh Circuit’s rule is affirmed in a 5-4 decision by Justice Alito.