Stomping on Workers’ Rights

Much of the coverage of today’s Supreme Court decisions will focus on the affirmative action case, Fisher v. University of Texas, but as Ian Millhiser points out in this post, two 5-4 decisions in the workers’ rights area will actually have more of an impact on most Americans and should not be overlooked.

In Vance v. Ball State, the Court limited the definition of “supervisor”  to those who 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.”

As Millhiser notes:

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.

In the second case, University of Texas Southwestern Medical Center v. Nassar, the Court rejected “mixed motive” retaliation claims in which race or other improper reason was one of several motives for retaliation.

As Millhiser explains:

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.



  1. Doug

    June 24, 2013 at 1:51 pm

    The first situation….that is probably something that needs to be addressed, but the “boss” of the secretary would likely fall into the direct influence as he would have pull over the secretarial pool in most cases….plus how many businesses have “secretarial pools” anymore? Needless to say, the courts would easily pull him in on charges anyway.

    The second excerpt, don’t the employers just lie about their “thoughts” anyway if it comes up? It looks like this would be the default defense, and is next to impossible to prove. Not sure how this would be addressed unless they wrote down those thoughts at the time, otherwise you are just assuming they thought something, or they are stupid enough to admit it.

  2. RJ

    June 24, 2013 at 3:59 pm

    Jeez, Doug, the courts don’t “pull anyone in on charges.” The courts deal with people the executive, through law enforcement, pulls in on charges. This tripartite gov thing really gives you fits, huh?

  3. Doug

    June 24, 2013 at 5:58 pm

    The courts/police consistently expand their definitions to charge people on the fringes of laws or trying to get into the grey area. Hence the “boss” can hire/fire the secretarial pool manager, or they he can fire his secretary out right regardless of who the actual direct manager is. Overall, the ruling for the first paragraph has little bearing on how things are likely to play out in the future.

  4. Doug

    June 25, 2013 at 9:45 am

    I am not a legal expert, but the courts and police are all a part of the justice system. If you want to get into the semantics just for an argument that is fine…I am sure all your comments are perfect in the references as well as prose, so excuse us novices who may not spend hours crafting our comments and researching the inner workings of the US legal system. Jeez…

  5. Doug

    June 25, 2013 at 9:47 am

    And RJ, you ignore completely my premise by sending up a straw man on the semantics of what I say. Whether it were the courts or police or procecutors….the point is they will still get their man regardless of who does the “pulling in” as I stated. Maybe you should address that, as I was actually presenting the view that the decision is not as bad as may be thought.

  6. RJ

    June 25, 2013 at 9:57 am

    How our government works is not semantics, and you’re just flat wrong. Maybe that’s your problem: you treat words as meaning what you think they mean instead of what they actually mean. Leads to all sorts of miscomprehension.

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