|Jottings By An Employer's Lawyer|
Tuesday, June 25, 2013
Let's Get a Grip, Employees' Rights Did Not End Yesterday
But according to a 5 to 4 decision by the Supreme Court today, the answer is no. With that ruling, the conservative majority — Chief Justice Roberts, and Justices Alito, Kennedy, Scalia and Thomas — has left many victims of workplace harassment without legal recourse.
In the case of harassment by "supervisors" the court held that there were two types of harassment. In those where in addition to the harassment there was a "tangible employment action," then the standard was strict liability, the employer would have no defense. However, if there was harassment by a supervisor, but no tangible employment action, the employer would be strictly liable unless it could establish a two part affirmative defense.
In other words, the manner of proof depends on the status of the harasser and whether there was any tangible job action. There are three buckets:
To be fair, Tritch later qualifies her earlier statement:
Under Title VII of the 1964 Civil Rights Act, employers are liable for discrimination by a “supervisor,” but not by co-workers (unless the victim has reported abuse by co-workers to a supervisor who does nothing to remedy the situation.)The relegation of the whole first bucket to the parenthetical shows a misunderstanding of how harassment law works. It also fails to mention that the negligence standard covers not only situations where abuse was reported and the employer failed to act, but situations where the employer should have known abuse was occurring and failed to act.
What Justice Alito was doing was defining what standard would apply. Since there are different methods of proof, it is not insignificant, but it is hardly the end of the world and it is certainly not removing protection from harassment from any employee.
In the Nassar case, Tritch starts out on a wrong foot:
A second employment case, University of Texas Southwestern Medical Center versus Naiel Nassar, decided by the same 5 to 4 majority also thwarts the ability of employees to sue for discrimination under Title VII.The whole basis of Nassar is that there are different standards, in different parts of the statute, for discrimination and retaliation under Title VII. Nassar has absolutely no impact on any employee claiming that they have been discriminated against because of their race, color, national origin, religion or sex, the five protected categories under Title VII. It only deals with retaliation.
The biggest error is this:
The university medical center appealed, saying that for Dr. Nassar to prevail, he had to show that retaliation was the sole factor leading to the job denial.Tritch later repeats that mistake saying Justice Kennedy said that Nassar had to "show that retaliation was the sole factor in the job denial."
The trouble is he does not, even after yesterday's decision.
There are at least three different standards for finding liability in employment cases. The easiest way to show the difference is to use mathematical terms, although it is admittedly an oversimplification:
Again, I am not saying it is not a victory for employers, nor insignificant. However, I would argue that in all fairness if it is not the only reading of the law as written, it is at least a fair reading of the law on which reasonable minds could differ.
It also is a repeat of what the Supreme Court decided was the standard in ADEA cases in Gross v. FBL Financial Services, and although there were similar cries that the world was ending for age cases, I haven't seen any support that has actually happened in the four years since Gross was decided.
There are also good reasons why motivating factor is not a workable standard for use when we have jury trials. In fact I testified before the Senate Judiciary Committee to that effect when they were considering legislatively reversing Gross. See link here. I would like to say my testimony persuaded them otherwise, but I am fairly certain it had more to do with legislative grid-lock than anything I had to say.
Employers definitely won yesterday. But in a system where employers lose just by being sued, to imply that these were drastic decisions demolishing the protections of the workplace, just goes too far.
The question now is how far and how deeply the infection will spread before Congress passes legislation to establish the E.E.O.C’s reasonable definition of “supervisor” as the law of the land.
Really? Let's all get a grip.