In two big employment law cases, the U.S. Supreme Court has made it harder for employees to bring discrimination suits over workplace harassment and retaliation.
The two 5-to-4 rulings frustrated Justice Ruth Bader Ginsburg so much that she took the unusual step of reading a dissent from the bench addressing both cases. Her dissent apparently frustrated Justice Samuel Alito so much that he rolled his eyes as Ginsburg spoke.
Under previous court rulings, the justices have held that an employer is automatically liable under the 1964 Civil Rights Act for the actions of supervisors who harass the workers under their control. If, however, the harasser is a co-worker and not a supervisor, the company is only liable if it was negligent in responding to a complaint. In Monday's case, the question was who qualifies as a supervisor.
In the case before the court, involving a catering service at a university, the alleged victim of the harassment, backed by the U.S. Equal Employment Opportunity Commission, argued that a person is a supervisor if she has authority to control someone else's daily activities and evaluate performance. But the court rejected that "nebulous" definition and instead defined a supervisor as someone who has the power to take "tangible employment action" against the victim.
Writing for the 5-4 majority, Justice Samuel Alito said tangible action means making a significant change in employment status like hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.
"The ability to direct another employee's tasks is simply not sufficient," Alito wrote. "Employees with such powers are certainly capable of creating intolerable work environments, but so are many other co-workers."
In a second employment case, the court made it more difficult for employees to prevail when charging illegal retaliation.
The case involved a doctor who claimed his employer blocked a job opportunity after he made complaints about his supervisor's racially discriminatory comments.
The Civil Rights Act prohibits employers from retaliating against workers for reporting employment discrimination. In a 1989 case, the court ruled that the plaintiff has to show that discrimination was just one of the employer's motives for making the employment decision. But Justice Anthony Kennedy, writing for the court, rejected that standard, instead imposing a stricter rule.
By a 5-to-4 vote, the court said that those claiming to be the victims of illegal retaliation must show that the only reason for the action against them was that they reported some discriminatory action.
In summarizing the views of the four dissenters in both cases, Justice Ginsburg said that the workplace decisions diluted the strength of the federal anti-discrimination law in ways Congress could not have intended.
As she spoke, Justice Alito, sitting next to her, rolled his eyes.
In the first case, she said the supervisor/co-worker distinction makes no sense. A worker can walk away from a co-worker or tell him to "buzz off," she noted, whereas that is much harder to do "given the control rein held by an in-charge supervisor. She gave as examples, four situations in which "in-charge" employees — not considered supervisors under the court's standards — harassed other employees verbally, sexually and using race-based epithets.
"The Court embraces a position that relieves scores of employers of responsibility for behavior of the supervisors they employ," Ginsburg wrote. "Inevitably, the Court's definition of supervisor will hinder efforts to stamp out discrimination in the workplace."
Ginsburg called upon Congress to do as it has before and correct the majority's restrictive construction of Title VII.