PI Original Ashlee Rezin Tuesday June 25th, 2013, 7:56pm

SCOTUS Workplace Harassment Decision Likely To Hurt Workers Facing Discrimination

Victims of workplace harassment and discrimination suffered a major setback Monday, according to critics of the U.S. Supreme Court decision to not hold Ball State University (BSU) responsible for racial discrimination and harassment of an African American kitchen worker in 2005.

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Victims of workplace harassment and discrimination suffered a major setback Monday, according to critics of the U.S. Supreme Court decision to not hold Ball State University (BSU) responsible for racial discrimination and harassment of an African American kitchen worker in 2005.

In a 5-4 ruling, the court upheld a 7th Circuit Court of Appeals’ decision to throw out Maetta Vance’s harassment lawsuit against the school. 

Vance, a catering specialist at BSU, alleged that her coworker, Shaundra Davis, subjected her to racial harassment and unlawful retaliation in 2005. Vance claims Davis was her supervisor, and therefore BSU should be held accountable for any harassment that took place. But because Davis did not hire Vance and could not fire her, the court determined the school is not responsible for Davis’ actions.

BSU avoided liability by taking appropriate corrective actions as mandated in Title VII of the Civil Rights Act, according to the ruling.

The decision narrows the definition of supervisor and determines that, in order for an employer to be held liable for harassment and discrimination in the workplace, the offender must have certain supervisorial authorities, such as hiring and firing.

“The ability of workers to protect themselves from harassing and discriminative employers has just gotten harder,” said Bob Bruno, professor of labor and employment at the University of Illinois at Urbana-Champaign. “This is just an additional barrier that workers have to overcome in order to work in a non-discriminatory, non-harassing, safe workplace.”

Title VII makes it clear that workplace harassment and discrimination, whether sexual, racial, or other, is unlawful. But a 1998 Supreme Court decision, commonly referred to as the "Faragher/Ellerth affirmative defense", holds harassment from a supervisor to a different standard than harassment from a coworker.

In cases involving coworkers, employers can establish affirmative defense and, if the company proves it took reasonable steps to prevent and correct the situation, avoid liability.

If workplace harassment or discrimination stems from a supervisor who makes decisions regarding compensation, hiring or firing, affirmative defense is not available and employers are held vicariously liable.

“The decision essentially decides that harassment by a direct supervisor that oversees work, but isn’t responsible for hiring and firing, is more like harassment from a coworker,” said Sarah Crawford, director of workplace fairness at the National Partnership for Women & Families. “But often the supervisors who oversee and direct workers’ daily activities are uniquely positioned to make a worker’s life miserable.”

Crawford said, thanks to the court’s decision, it will now be “even harder” for workers to hold an employer accountable for workplace harassment and discrimination. The worker would have to prove the employer did not take reasonable care to block and remedy the harassment.

"This will have grave consequences for victims of workplace harassment," she added. "Harassment from direct supervisors, who most likely don't have the power to hire and fire, is more of a concern facing workers than harassment by supervisors who may be further removed or sitting in a human resources office."

The National Partnership for Women & Families joined forces with ten workers’ and civil rights organizations in filing a friend-of-the-court brief in September. The brief argued that if the court ruled in favor of BSU, it would be “ignoring the common sense meaning of 'supervisor.'”

According to the brief, the number of harassment claims filed with the U.S. Equal Employment Opportunity Commission (EEOC), and state and local fair employment agencies, has increased by 25 percent over the last decade. Allegations of racial harassment have also increased 31 percent in that same time period, the brief indicates.

“Unfortunately, harassment is a persistent problem in today’s workforce and this decision essentially lessens incentives for employers to ensure that their supervisors are not engaging in unlawful harassment,” Crawford said.

Written by Justice Samuel Alito, the majority opinion to rule in favor of BSU cited Davis’ inability to "hire, fire, demote, promote, transfer, or discipline" Vance.

"We hold that an employee is a 'supervisor' for purposed of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim," Alito said. "Because there is no evidence that BSU empowered Davis to take any tangible employment actions against Vance, the judgment of the Seventh Circuit is affirmed."

The ruling was dissented by Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Stephen Breyer.

Ginsburg said in her dissent that the decision “dilutes the strength of Title VII in ways Congress could not have intended” and demonstrates a “disregard for the realities of the workplace.”

"The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today,” Ginsburg’s dissent reads.

Bruno said, although “it would be good if we got a legislative response”, calling on Congress to address workplace harassment was an attempt to “pass the ball.”

“They could pass legislation that more clearly defines liability in circumstances of harassment and discrimination in the workplace,” he said. “But I don’t think that will happen anytime soon. The court had the opportunity to establish a precedent yesterday, but they didn’t.”

Tony Proudfoot, spokesman for BSU, said the school is pleased with the Supreme Court’s decision.

“Ball State remains actively committed to diversity and maintaining a welcoming community for everyone,” he said in a statement.

Workers especially vulnerable to harassment and discrimination are women and minorities in the low-wage industry, according to Elizabeth Parisian, policy director for the labor coalition Stand Up! Chicago.

“The more precarious the employment, the more vulnerable the worker, and the more that folks in power in those workplaces think they can get away with,” she said.

During the nation’s economic recovery, following the 2008 recession, more than half of the jobs created have been low-wage positions, paying $13.83 an hour or less, according to CNN.

Parisian said the bulk of the workers filling those positions in Illinois are women and minorities, groups that have historically been excluded from workplaces and workplace protections.

“We have a lot of women and minorities in Illinois having a really hard time getting claims of hostile working environments taken seriously and getting any kind of legal recourse,” she said.

As a “key example”, Parisian cited a charge of alleged sexual and racial harassment filed Friday with the EEOC against Chicago’s Jason’s Deli.

“We see this a lot in the low-wage fast food and retail industry,” she said. “Workers really endure a lot, especially gender and race discrimination, and we should be working to put laws in place that give them even more protection and what happened yesterday was really a setback.”

Of the nation's 99,412 discrimination charges filed with the EEOC in fiscal year 2012, roughly 5.5 percent, or 5,490, came from Illinois. More than 33 percent of the state's discrimination charges filed with the EEOC were based on race, while 26.4 percent were based on gender and 34.6 percent were filed for alleged unlawful termination.

Following the Supreme Court's decision, Bruno said he anticipates an uptick in harassment and discrimination in the workplace, but also said most workers will likely suffer in silence.

“Nothing the court did makes harassment less likely, it makes it more likely,” he said.

Unionizing a workforce, he added, is the best thing workers can do to protect themselves from harassment and discrimination.

“One would hope the union would have good contract language and have the means to use a grievance process to hold employers responsible,” he said.

Employees should be “provided a pathway” to bring issues before their employer without fear of retaliation, he added.

“This decision means more workplace harassment will go without a remedy,” Bruno noted. “The court said it’s not interested in ending discrimination and harassment in the workplace, it’s interested in making sure employers are not unfairly held responsible and that’s a completely backwards and absurd conclusion.”

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