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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 [1], 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 [2], 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 [3], 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 [4], 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 [5] 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.