Two Supreme Court rulings raise the bar for worker lawsuits

Updated: 2013-07-03T03:53:02Z


The Kansas City Star

The U.S. Supreme Court, in two cases this week involving workers’ rights, either:

(a) Provided “a great day for sexual harassers and for bosses who retaliate against workers,” or

(b) gave a “little summer shade” for employers.

The opposing perspectives — one from a liberal blogger, the other from an attorney whose clients are employers — responded to court decisions that were largely eclipsed by high-profile opinions on affirmative action, voting rights and gay marriage.

In two 5-4 votes, a common split on the current court, the conservative majority made it harder for employees to sue their employers for harassment, discrimination or retaliation.

Both of the decisions will send ripples into the workplace. Both add to a roster of high court cases in recent years that favor companies over workers. And both forecast more momentous workplace rulings to come.

In one new decision, the majority agreed that employers can be held liable for a supervisor’s sexist or racist behavior, but it more narrowly defined a supervisor as a boss with the power to hire, fire, demote, promote, transfer or discipline a worker.

The narrower definition means employees will have greater difficulty pursuing cases against the employer if the harassment or discrimination comes from less powerful managers or co-workers.

In the other case, the court majority increased the burden of proof for an employee to claim retaliation by an employer. The employee must prove that there wouldn’t have been retaliation except for the fact that the employee had complained about discrimination or harassment.

“These are stricter standards for workers and their lawyers to meet,” said Timothy Davis, an employment law attorney in Kansas City with the firm of Constangy Brooks & Smith. “Employers should be happy with what’s going on and should expect the conservative trend will continue in this court.”

Meanwhile, worker advocates called foul.

“By failing to uphold a common-sense definition of the term ‘supervisor’ and ignoring precedent, the court demonstrated callous disregard for victims of harassment,” said Judith Lichtman, senior adviser to the National Partnership for Women & Families.

Justice Ruth Bader Ginsburg said as much in her dissent to the majority opinion written by Justice Samuel Alito.

Alito was backed by Chief Justice John Roberts Jr., and Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy.

Ginsburg was backed by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

As she did six years ago, after the court dismissed the Lilly Ledbetter lawsuit, Ginsburg called on Congress to address what the court minority viewed as an erosion of Title VII of the Civil Rights Act.

Back then, Congress passed a law that lengthened the time workers had to bring discrimination complaints, and the Lilly Ledbetter Fair Pay Act became the first legislation signed into law by President Barack Obama.

Political pundits say the current Congress isn’t likely to respond similarly.

In narrowly defining a supervisor, Alito wrote that an employer had “vicarious liability” only if the wrongdoer had the authority to take “tangible” employer action against the employee. Ginsburg countered that anyone with experience in the workplace knows that harassment and discrimination can be inflicted by someone other than the person with the power to hire or fire.

The stricter supervisor standard came out of a case, Vance v. Ball State University, in which a cafeteria worker alleged discriminatory violations of Title VII of the Civil Rights Act. The court held that the accused person was a co-worker of the plaintiff, not her supervisor, and that the university was not negligent.

Stripping away the legalese, here’s a made-up, made-for-TV illustration: If, in “Mad Men,” office manager Joan Harris hires, fires and assigns the ad agency’s secretaries, a secretary harassed by ad agency partner Don Draper might have a harder time bringing a discrimination claim against the agency because Draper isn’t considered the secretary’s boss.

“There’s a more corporate slant on the court,” said Shelly Freeman, an attorney at HROI, which offers employer training and consulting in human resources. “But it doesn’t allow employers to be complacent for one single minute. It doesn’t authorize team leads to harass.”

Freeman said she encourages her corporate clients to expand anti-harassment and anti-discrimination training throughout the workforce.

“The decision imposes liability on the employer only if the victim proves the employer knew or should have known about the harassment and then was negligent in dealing with the situation,” Freeman said.

The second workplace case didn’t generate as much immediate reaction, but some legal authorities said it also will have repercussions.

That case, University of Texas Southwestern Medical Center v. Nasser, dealt with a physician who claimed hostile treatment and retaliation — in the form of a poorer job assignment — by a hospital supervisor after Nasser complained of discrimination.

The new ruling toughened the standards for an employee to win that kind of retaliation case. The court majority said plaintiffs must prove that retaliation was not just “a motivating factor” but was the determining factor.

Legal authorities said the two cases had fairly predictable outcomes.

“The more conservative members of the court are always on the side of limiting the rights of people to sue companies,” said Allen Rostron, a constitutional law professor at the University of Missouri-Kansas City. “It’s pretty fair to say that the U.S. Chamber of Commerce usually wins because the trend is certainly to empower employers over the employees.”

To reach Diane Stafford, call 816-234-4359 or send email to

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