Monday was a great day for sexual harassers and for bosses who retaliate against workers claiming discrimination. The rest of us did not fare so well in the Supreme Court. While most Court watchers will likely focus on the narrower-than-expected decision in the Fisher affirmative action case, the most lasting impact of today’s decisions likely will be the twin blows struck against women and minorities in the workplace. Taking advantage of employees just became a whole lot easier.
The first case, which we previously labeled the “scariest pending Supreme Court case that you’ve probably never heard of” made it significantly easier for many people’s bosses to racially or sexually harass them and get away with it. Though the law provides fairly robust protection to workers harassed by their supervisor, the Court’s 5-4 decision in Vance v. Ball State University defined the term “supervisor” very narrowly. Under today’s decision, your boss is only your “supervisor” if they have the power to make a “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.”
The problem with this definition of the word “supervisor” is that it cuts out many individuals who exercise significant power to direct fellow employees — potentially including the power to intimidate those employees against reporting their actions to their employer — just so long as those individuals don’t actually have the power to fire or demote anyone. Justice Ruth Bader Ginsburg’s dissenting opinion lists several examples of now-no-longer-supervisors under Vance. One of them is a senior truck driver who coerced a female subordinate into unwanted sex with him. At oral argument, Justice Elena Kagan gave the example of a secretary whose boss “subjects that secretary to living hell, complete hostile work environment on the basis of sex.” Under today’s decision, the secretary’s boss is not her “supervisor” if the power to fire her rests with the “Head of Secretarial Services.” Don Draper can proposition his secretary with near impunity, so long as Joan Harris is the only one empowered to fire her.
To be clear, a victim of harassment may still sue their employer if the company was “negligent in permitting  harassment to occur,” but this safeguard will mean little to workers who are so intimidated by their not-a-supervisor-according-to-Justice-Alito that they are afraid of what will happen if they report harassment to more senior management. Moreover, as Ginsburg writes in dissent, “anyone with work experience would immediately grasp” that a person does not have to be able to fire someone in order to exert significant control over them, to use this power to create a hostile work environment or even to demand that the worker be sexually available to them. Justice Samuel Alito, and the four conservatives who joined his majority opinion, apparently did not grasp this fact.
In a second case, University of Texas Southwestern Medical Center v. Nassar, the same five conservative justices gave employers a freer hand to retaliate against victims of discrimination who report that they have suffered discrimination. Nassar, which involves a physician of Middle Eastern descent who claims that his recent employer withdrew a job offer after he complained about an allegedly racist supervisor who said that “Middle Easterners are lazy,” nixes what are known as “mixed motive” retaliations claims under a key anti-discrimination law. Under the mixed motive framework, an employer cannot automatically escape liability for retaliation if racism, sexism or a similar improper motive was only one of several factors driving a decision to retaliate against an employee.
Justice Anthony Kennedy’s majority opinion rests heavily on a similar case, Gross v. FBL Financial Services, where the five conservatives killed mixed motive lawsuits in age discrimination cases. As we explained when that decision was handed down, mixed motive suits are important because they force an employer to reveal what they were actually thinking at the time that they fired or demoted an employee. Without this framework, employees are faced with the nearly-impossible task of proving that the sole thing on their boss’ mind was discrimination at the time that they decided to take action against a worker.
As Justice Ginsburg points out in dissent, Kennedy’s opinion relies on a law Congress enacted to strengthen the law’s protections against retaliation in order to undermine them. Once again, Ginsburg is also forced to explain that the conservative justices ignore the way workplaces actual function. Quoting Sen. Clifford Case (R-NJ), Ginsburg warns that Kennedy’s “sole cause” rule leaves the law’s protection against retaliation virtually meaningless. “[I]f anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of.”