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The New York Times recently published an article that is important to every faculty member.

Supreme Court Raises Bar to Prove Job Discrimination

By Steven Greenhouse, The New York Times

In two decisions issued on Monday, the Supreme Court effectively made it harder for workers to prove that they had suffered employment discrimination.

Justice Ruth Bader Ginsburg wrote the minority opinion in one case.

One ruling narrows the definition of what constitutes a supervisor in racial and sexual harassment cases, while the other adopts a tougher standard for workers to prove that they had faced illegal retaliation for complaining about employment discrimination.

In both cases, the rulings were decided by a 5-to-4 majority, with the dissenting justices, the court’s four most liberal members, calling on Congress to fix what they said were overly restrictive rulings.

In Vance v. Ball State University, in which an African-American worker accused her supervisor of racial harassment, the court held that the person she accused was a co-worker and not a supervisor — a distinction that requires a higher burden of proof for the plaintiff’s employer to be found liable.

The majority decision, written by Justice Samuel A. Alito Jr., rejected the definition of “supervisor” advanced by the Equal Employment Opportunity Commission as someone authorized to take “tangible employment actions” or direct the employee’s daily work activities.

Rather, the court ruled that being a supervisor should be limited to someone authorized to take “tangible employment actions” like hiring, firing, promoting, demoting or reassigning employees to significantly different responsibilities.

Justice Alito, noting that there are numerous definitions of who is a supervisor, wrote that “the ability to direct another employee’s tasks is simply not sufficient” to declare someone a supervisor. He ridiculed the E.E.O.C’s definition of supervisor, saying it was a “study in ambiguity.”

The plaintiff, Maetta Vance, a banquet worker at Ball State University in Muncie, Ind., asserted that Saundra Davis, who is white and was described as a catering specialist, had glared at her, slammed pots and pans around her and blocked her on an elevator. Both sides agreed that Ms. Davis did not have the authority to hire or fire employees.

Under previous Supreme Court decisions, plaintiffs claiming racial or sexual harassment faced a lower burden to prove an employer liable when the harassment was committed by a supervisor rather than a co-worker. For instance, if the harassing supervisor was found to have taken adverse actions against an employee, like demoting the person, the employer was strictly liable for that action. And even when a supervisor’s harassment did not culminate in a specific negative employment action, the employer could be held liable if the employer failed to prove that it exercised reasonable care to prevent and correct any harassing behavior.

But for an employer to be held liable when a co-worker is accused of harassment, the plaintiff has the burden of proving that the employer was negligent by not stopping the behavior.

The court upheld a decision by the Seventh Circuit Court of Appeals that held that Ms. Davis was not a supervisor and that Ball State was not negligent with respect to her behavior. Justice Alito emphasized that the court’s adoption of a narrower definition of supervisor did not leave plaintiffs unprotected, but left them with a different burden of proof.

In a stinging dissent, Justice Ruth Bader Ginsburg argued that the majority opinion “is blind to the realities of the workplace.” She wrote that it is not easy for an employee to tell a harassing supervisor to “buzz off” even when the supervisor does not have the power to fire or demote.

“An employee who confronts her harassing supervisor risks, for example, receiving an undesirable or unsafe work assignment or an unwanted transfer,” Justice Ginsburg wrote. “She may be saddled with an excessive workload” or a shift that disrupts her family life.

Asserting that the ruling undermines Congress’s desire for “robust protection against workplace discrimination,” Justice Ginsburg warned that the decision would relieve employers of responsibility for the behavior of many of their supervisors.

“The ball is once again in Congress’ court to correct the error into which this Court has fallen,” she wrote.

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