The real supreme court stunner: sometimes workplace harassment is OK
In Vance v Ball State University, the US supreme court has ruled that job harassment only counts if it's from a 'supervisor'
The US supreme court. Photograph: Evan Vucci/AP
Every June a few US supreme court
cases get a reputation for being blockbusters, and this year has been
no different. We're still awaiting decisions on cases concerning gay
marriage and the Voting Rights Act. But the blockbusters can obscure
smaller cases with profound effects. On Monday, the court quietly
delivered a destructive, toxic decision on workplace harassment that is
as significant as anything else this year.
Vance v Ball State University, which concerned the interpretation of a section of the Civil Rights Act, shouldn't have even reached America's highest court – but it did, and the court's right wing grabbed ahold and used it to further gut workplace protections.
The petitioner was Maetta Vance, the only African-American woman working in the catering department of Ball State University in Indiana. Her supervisor, a white woman, appears to have made her work life a living hell. The supervisor assigned her to perform menial tasks, such as slicing vegetables, even though Vance had worked at the caterer for years and frequently prepared formal dinners for the university. According to Vance, she faced not only frequent racial harassment, including references to the Ku Klux Klan, but sometimes physical threats as well. On one occasion, at least, the supervisor allegedly slapped her.
Vance sued the university for permitting a hostile work environment, but there was a catch: although the harasser controlled Vance's day-to-day responsibilities at the catering department, she didn't have the power to demote or fire her.
For Sam Alito, writing for the five members of court's conservative bloc, that distinction meant that Vance had no case. Ball State can't be held liable, since the harasser wasn't really a "supervisor", only a "coworker". An employer can only be held responsible for a harasser's actions, the court ruled, if it has empowered the harasser "to take tangible employment actions against the victim" – such as demotion, a change in benefits, reassignment, or dismissal. The Equal Employment Opportunity Commission, the federal agency responsible for investigating discrimination complaints, had long espoused a more realistic understanding of how workplaces are organized, but Alito had no time anything so "nebulous".
Until Monday, the court had accepted that someone who directs an employee's daily activities is a supervisor. No more. Now, according to the court, unless your harassers have the explicit, formal power to hire and fire you, then they don't count as a supervisor – and therefore you can't bring a suit against your employer. But as Ruth Bader Ginsburg explained in an understandably exasperated dissent, joined by the other liberal justices, such an extremely narrow definition fails to account for the realities of the workplace:
In one way, the decision in Vance shouldn't surprise us too much. A comprehensive study published earlier this year by the Minnesota Law Review concluded that the Roberts court is the most pro-business bench since World War II. In the last three years alone the court has limited companies' exposure to class-action lawsuits, diminished corporations' responsibility for environmental damages and human rights abuses, and (most notoriously) allowed corporations to spend as much as they want in political campaigns.
Yet even by the pro-business standards of our conservative high court, Vance is a breathtakingly cruel decision – one that leaves many victims of harassment and discrimination without any legal recourse. By narrowing the definition of who counts as a supervisor, the court has let businesses and corporations off the hook for all sorts of abuses, siding once again with the powerful at the expense of the powerless.
And it means that women like Maetta Vance, who live and work in fear, will have nowhere to turn.
source
COMMENTS
Vance v Ball State University, which concerned the interpretation of a section of the Civil Rights Act, shouldn't have even reached America's highest court – but it did, and the court's right wing grabbed ahold and used it to further gut workplace protections.
The petitioner was Maetta Vance, the only African-American woman working in the catering department of Ball State University in Indiana. Her supervisor, a white woman, appears to have made her work life a living hell. The supervisor assigned her to perform menial tasks, such as slicing vegetables, even though Vance had worked at the caterer for years and frequently prepared formal dinners for the university. According to Vance, she faced not only frequent racial harassment, including references to the Ku Klux Klan, but sometimes physical threats as well. On one occasion, at least, the supervisor allegedly slapped her.
Vance sued the university for permitting a hostile work environment, but there was a catch: although the harasser controlled Vance's day-to-day responsibilities at the catering department, she didn't have the power to demote or fire her.
For Sam Alito, writing for the five members of court's conservative bloc, that distinction meant that Vance had no case. Ball State can't be held liable, since the harasser wasn't really a "supervisor", only a "coworker". An employer can only be held responsible for a harasser's actions, the court ruled, if it has empowered the harasser "to take tangible employment actions against the victim" – such as demotion, a change in benefits, reassignment, or dismissal. The Equal Employment Opportunity Commission, the federal agency responsible for investigating discrimination complaints, had long espoused a more realistic understanding of how workplaces are organized, but Alito had no time anything so "nebulous".
Until Monday, the court had accepted that someone who directs an employee's daily activities is a supervisor. No more. Now, according to the court, unless your harassers have the explicit, formal power to hire and fire you, then they don't count as a supervisor – and therefore you can't bring a suit against your employer. But as Ruth Bader Ginsburg explained in an understandably exasperated dissent, joined by the other liberal justices, such an extremely narrow definition fails to account for the realities of the workplace:
"Supervisors, like the workplaces they manage, come in all shapes and sizes. Whether a pitching coach supervises his pitchers (can he demote them?), or an artistic director supervises her opera star (can she impose significantly different responsibilities?), or a law firm associate supervises the firm's paralegals (can she fire them?) are matters not susceptible to mechanical rules and on-off switches. One cannot know whether an employer has vested supervisory authority in an employee, and whether harassment is aided by that authority, without looking to the particular working relationship between the harasser and the victim."Justice Ginsburg goes on to detail all sorts of recent harassment cases,– including one concerning a female truck driver bullied into having sex with her male colleagues, that will no longer qualify for judicial remedy under the court's new principle. The result, she concludes, is that the terrain for harassment cases "has shifted in a decidedly employer-friendly direction. This realignment will leave many harassment victims without an effective remedy and undermine Title VII's" – that is, the relevant section of the Civil Rights Act – "capacity to prevent workplace harassment".
In one way, the decision in Vance shouldn't surprise us too much. A comprehensive study published earlier this year by the Minnesota Law Review concluded that the Roberts court is the most pro-business bench since World War II. In the last three years alone the court has limited companies' exposure to class-action lawsuits, diminished corporations' responsibility for environmental damages and human rights abuses, and (most notoriously) allowed corporations to spend as much as they want in political campaigns.
Yet even by the pro-business standards of our conservative high court, Vance is a breathtakingly cruel decision – one that leaves many victims of harassment and discrimination without any legal recourse. By narrowing the definition of who counts as a supervisor, the court has let businesses and corporations off the hook for all sorts of abuses, siding once again with the powerful at the expense of the powerless.
And it means that women like Maetta Vance, who live and work in fear, will have nowhere to turn.
source
COMMENTS
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- HansBaderMaybe you are speechless, because -- like the author of the above article -- you did not even read the U.S. Supreme Court's ruling.
This article's basic premise is false, as legal commentator Walter Olson has noted elsewhere, criticizing this very article. U.S. employees can indeed sue over co-worker or peer harassment even after this decision, as any knowledgeable American employment lawyer would tell you.
Under U.S. Supreme Court precedent, employers ARE liable for negligence towards even co-worker peer sexual harassment, under the Supreme Court's past decision in the Faragher v. City of Boca Raton case. But the employee needs to prove such negligence when the harassment is by a co-worker. By contrast, when the harassment is by a supervisor, the employer is presumed liable unless the employer meets the burden of proving a two-part defense, one of which is that the employer is not negligent. Thus, it is a little easier to win when the harasser is categorized as a supervisor.
Every federal appeals court -- including the courts cited with approval by Justice Alito's majority opinion in this case -- has said that employees can sue over co-worker harassment, if they show that the employer was negligent in responding to that harassment, or caused that harassment to occur through its carelessness. -
HapDiamVery disappointing quality in too many articles here. This one shows complete misunderstanding, or else accuracy was not a concern.
martin1000Recommend45So the university/employer has no incentive to discipline any of its workers for misbehavior (including violence), unless the perpetrator can fire the person they are abusing? I wish I could say this is an unbelievable decision from the Court, but I cannot.
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Guswfla1The Supreme Court only counts because people are too stupid to ignore it. It has no enforcement powers, people!
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davidabsalomRecommend30Surely the point is that if you take a similar case to court it will be thrown out immediately. The Supreme Court doesn't need to enforce this, it's the lower courts that do.
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DeleteThisPost@Guswfla1 24 June 2013 7:19pm.
The Supreme Court only counts because people are too stupid to ignore it. It has no enforcement powers, people!
You sound like Andrew Jackson.
OR
The Supreme Court only counts because people are too stupid to ignore it. It has no enforcement powers, people!
The same could be said of Congress.
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NicetimeRecommend12it means that women like Maetta Vance, who live and work in fear, will have nowhere to turn.
Apart from another job. I fell foul of a boss a few years back at a time when I had a weight problem. I was moved off a shift role I enjoyed into a non-job thus losing my 25% shift allowance, bellowed at from across the office and had everything I did put under a microscope. The union were, of course, useless. I fought back in various ways, but to cut a long story short, eventually took a redundancy package and another job. These things are always going to be one persons word against another, they clog up the courts, are a payday only for lawyers and most importantly, put good people and businesses in fear of malicious action . Most people behave decently and if your boss is a c---, move on
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Spartacus MaoriRecommend37All that is required for evil to flourish is for good men to do nothing.
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sevenpinRecommend29@Nicetime 24 June 2013 7:21pm. Get cifFix for Chrome.
Not everyone has the possibility of getting another job that easily. More to the point, if someone can get away with making someone's worklife a misery, they should be held accountable for it. Clearly the supreme court is not accountable for their stupidity. Damn shame, they should be. There should be punitive damages awarded from their own pockets for their incompetence. We would soon see a little more brain being used when making decisions.
Incompetent Supreme Court Judges, the people should have the redress to fire them. What use are the current supreme court judges?
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KeepItInContextRecommend22We are talking here about a black woman in a country that has no jobs. Move on? Easy enough for a white guy to say. Actually not, given the economic situation. You should remove the rose-colored glasses once in a while. Empathy is a positive character trait, but some clarity is required to develop it.
And what are the courts for, if not serving the cause of justice?
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A Man Called Da-daRecommend15The Supreme Court becomes yet another U.S. Government oxymoron. All branches of government have now failed, and need be replaced.
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LakerFanYet even by the pro-business standards of our conservative high court, Vance is a breathtakingly cruel decision – one that leaves many victims of harassment and discrimination without any legal recourse. By narrowing the definition of who counts as a supervisor, the court has let businesses and corporations off the hook for all sorts of abuses, siding once again with the powerful at the expense of the powerless.
Well, IMO, they're just re-booting The Sixties and challenging the people to undertake another great cultural revolution. The real problem, IMO, is that decent people decide to live in awful and repressive places like Indiana. It's obviously a more hostile and backward place than Somalia.
And it means that women like Maetta Vance, who live and work in fear, will have nowhere to turn.
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AVoiceFromAmericaThe real problem, IMO, is that decent people decide to live in awful and repressive places like Indiana.
Indeed.
There is a place in California for all who have had enough of Indiana.
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Nicetime
The real problem, IMO, is that decent people decide to live in awful and repressive places like Indiana. It's obviously a more hostile and backward place than Somalia.
That's the most sensible thing you've ever said
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PhillyguyYes- because California is well run- their pension system is such a timebomb even Jack Bauer would throw in the towel.
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InsirgentzRecommend15"A comprehensive study published earlier this year by the Minnesota Law Review concluded that the Roberts court is the most pro-business bench since World War II. In the last three years alone the court has limited companies' exposure to class-action lawsuits, diminished corporations' responsibility for environmental damages and human rights abuses, and (most notoriously) allowed corporations to spend as much as they want in political campaigns."
The secret banking cartel [FR], corporations and the Military Industrial Complex run the show.....and the have the SC to approve it.
Dark days ahead.
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ibneadamRecommend19"Until Monday, the court had accepted that someone who directs an employee's daily activities is a supervisor. No more. Now, according to the court, unless your harassers have the explicit, formal power to hire and fire you, then they don't count as a supervisor – and therefore you can't bring a suit against your employer."
Judge Alito, probably will have a different opinion if Vance was white, and her supervisor an african-american.
It is called turning back the clock, and taking country "back to the past." to the time of plantation, and granting license to harass.
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alansugarswindscreenScalia is a lot of things. But I don't think you could count racist as one of them.
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vastarinerIt is called turning back the clock, and taking country "back to the past." to the time of plantation, and granting license to harass.
You're not far out, the fellow servant rule was used in the English court to stop workplace lawsuits. But it was abolished a hundred years ago.
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ImpishparrotWell, the court leaves no alternative action to justice but for the harrassed to wait for the bee-acht "non-supervisor" in the parking lot, and beat the ever-living crap out of her. Go Supremes!
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LakerFanLOL. Perhaps this is what SCOTUS wants. Like The Sixties, they want people to be angry and powerless. After all, nothing really changed in The Sixties until people started burning the cities; then social climates changed real fast. Here in Los Angeles, it took five straight days of city-burning to mostly fix LAPD. There is a long-term benefit. Once a city has been burned, the trheat remains to hang over The Establishment.
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KrawuziKapuziStill a wee little bit sore that you did not get dabs a a real revolution but only a bit play-fighting with much whining about police brutality afterwards. My heart goes out to you.
And if you honestly think 5 days of riots sorted out LAPD or that it is sorted out in the first place than you are even more dim than I gave you credit for.
Growing up in Austria and Germany you remind me, and this is really frightening, of the family gathering when my mom and my my aunt were going "shoosh kids, Grand Pa is telling you about the war". Weird...
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LakerFanActually I sort of like anything that makes people very very angry on a hot day, with feelings of powerlessness, in large numbers. Mubarak can tell you about the sort of change that occurs.
Such SCOTUS decisions take us back to The Sixties and this is actually a good thing. Real social change happened in The Sixties and every opportunity to re-boot that decade is appreciated. America needs something like a major cultural revolution on a very large scale.
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- PhillyguyRace- everywhere- gender- almost everywhere I believe-
Sexuality is tough- I had a girlfriend in the fashion trade in Pennsylvania (yes - they have one- very practical).
The gay men in the industry are in the closet- yes- they actually fear that their bigoted owners might fire them for it-
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SirVicSpoundarstrange world we live in.
sometimes I do wonder if it is actually 2013
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marshwrenA.D. or B.C.? There certainly is an unmistakable odor of Bronze Age chauvinism among 'conservatives' these days.
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discuzRecommend11I'm not surprised. The corporations now have full control of the US. SCOTUS was the last front.
That means citizens have lost any protection under the law. By denying the people lawful opposition, only illegal means are left. Sooner or later, the silent majority wil rebel, and it won't be pretty.
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DeleteThisPost@discuz 24 June 2013 9:44pm.
Just what makes you think that the Supreme Court is controlled by corporations? They are appointed for life and so don't need money for a campaign, and they earn a really good salary, so I doubt many of them are hurting for cash.
Did you write that just because they've made decisions with which you disagree?
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CubsgirlRecommend19Respectfully, this article somewhat distorts the U.S. Supreme Court's ruling today. There are two types of sexual harassment claims in the United States - quid pro quo, which is essentially a strict liability statute for supervisors (under which the Vance case was filed), and co-worker harassment. The decision does not, as the article suggests, state that an employer can never be liable for harassment by an individual with partial supervisory authority if the individual in question is not involved in hiring or firing decisions. Rather, the decision clarifies the parameters for quid pro quo harassment (i.e., the definition of the term "supervisor"), and still allows employees to file claims against supervisors who are not involved in tangible employment actions under the co-worker harassment theory. Thus, it is not accurate to say that "unless your harassers have the explicit, formal power to hire and fire you, then they don't count as a supervisor – and therefore you can't bring a suit against your employer." Rather, employees still have the ability to bring such a suit under a co-worker harassment theory.
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John BroomfieldI agree with you. This story is biased in its determination to say the Supreme Court is cruel. The case should have been filed as co-worker harassment but the plaintiff's lawyer screwed up.
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marshwrenBut can one really blame the plaintiff's lawyer for filing under the wrong section of the statute when the lower court ruled it was properly filed? Just another example of 'activist judges overturning settled law and long-standing precedent to legislate a partisan agenda from the bench'.
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TheYoungerMouseI hope you are right that there is also protection against co-worker harassment, which applies whether the victim is senior to, co-equal with, or junior to the harasser, or doesn't even works in the same chain of command.
I know little about the position in the US, but in the UK Civil Service (where I used to spend my time, a serving of whoever was Home Secretary), as senior manager I didn't have the right to fire, or demote anyone, but would be held responsible if I let harassment go undealt with or reported, in my Section. I had to report a junior manager for homophobic 'banter' directed at a colleague, after first warning him that it was unacceptable. None of us had the right to fire or dismiss anyone! Failing to ensure a safe and comfortable working enviironment for anyone is - in a sense - harassment, even if you leave the banter to junior staff.
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joseph1832It is based on a statute. Propose an amendment focused on the particular issue.
Will the Republicans block it? Enough are worried about the gap in the female vote that it would be surprising if they dug heels in on this.
The truth may be that some statutes are worded so as to create bad results. It can be that judges are inclined to find such meanings to suit their politics.
But partisan misreading of a statute is not as bad as the partisan misreading of the constitution championed by liberals.
It is a statute. Easy to amend.
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marshwren
Will the Republicans block it? Enough are worried about the gap in the female vote that it would be surprising if they dug heels in on this
This Republican Party?!? Perish the thought*--with these Klown Kar Karnival barkers, it's 'damn the polls, full misogyny ahead'...
*try reading the article here on what the GOP wants Texas's new 'abortion' law to be to refresh your memory of exactly what the rest of U.S. have to put up with.
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larcen007Well - there is an easy way around this. Maetta Vance reports to her supervisor (the one that can fire her) about the actions of her supervisor (the one that can't fire her). After a few times reporting (I didn't read the opinion - I find it hard to believe that her supervisor's action went unreported to her real supervisors)
1. if no action has taken place by the supervisor that can fire people, they have basically adopted by proxy the behavior of the supervisor that can't fire her. therefore she can bring suit
2. If an action is taken and that action is Vance being fired, then she has a case.
Granted, this makes life MORE difficult for Vance - we are living in an age where people's lives are made more difficult by the government.
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David SchwartzThere are actually three ways. The third way is she can show her employer was negligent,
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jjtreeThe Supreme Court is a bunch of old white people that are out of touch with most of society (except the other old white people) and should not be in charge of anything.
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Voodootoyoutoo…and they are supremely beyond imagining anyone harassing them at work.
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CautiousOptimistThere are many reasons to criticise the Court, but "bunch of old white people" isn't really one of them.
The US is 11% African-American. The Court is 14%. Also 14% Hispanic.
Yes, they are old-ish. Such is the nature of Courts and Judges.
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artressaIs it any wonder that workplace violence in the form of workers snapping and shooting up their workplace/former workplace is becoming more commonplace?
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