The Supreme Court of the United States before dawn
(Courtesy Mark Noel)
I'm getting really tired of writing this lede, but here we go, again: In a pair of 5-4 decisions handed down Monday morning, a conservative pro-business majority of the Supreme Court of the United States has closed the courthouse doors to individuals seeking redress against their employers.  

In Vance v. Ball State University, the Court drastically narrowed the scope of who could be considered one's "supervisor" for purposes of finding an employer liable for workplace harassment;  in University of Texas Southwestern Medical Center v. Nassar, the Court sharply closed the courthouse doors to people who claimed they were retaliated against for complaint about workplace discrimination and harassment.

Maetta Vance worked as substitute server and part-time catering assistant for Ball State’s Banquet and Catering Division, where Saundra Davis and other Ball State employees allegedly subjected her to a racially hostile work environment. But because Davis didn't direct Vance's day-to-day activities, Vance can't sue her employer for Davis' actions.

Dr. Naiel Nassar, an internal medicine and HIV/AIDS specialist, complained repeatedly about his supervisor who, among other things, had observed in his presence that “Middle Easterners are lazy,” and then, in retaliation for Dr. Nassar’s complaining about the supervisor’s discriminatory remarks, blocked an affiliated medical facility from giving him a new job. After finding a new job in a different state (at a smaller clinic), he sued for being retaliated against for having complained. But because he couldn't prove that the negative treatment would not have happened but for his complaining, as opposed to the typical standard that retaliation was a motivating factor.

In both cases, the U.S. Chamber of Commerce sided with the corporations, bringing its record to 13-3 this term. (Good enough for a first-round bye, because clearly the Chamber has home-field advantage before the Supremes.) And in both cases, this will lead to fewer lawsuits trying to hold employers accountable—indeed, in Dr. Nassar's case, the five conservative Justices openly decry just how many retaliation lawsuits are filed, and cheer on the closing of the courthouse doors to these victims.

And in both cases, as with Lilly Ledbetter, the Supreme Court is not the final word. As Justice Ginsburg notes in both dissents, this is a statutory matter and Congress can fix it:

When Title VII was enacted, Congress considered and rejected an amendment that would have placed the word “solely” before “because of [the complainant’s] race, color, religion, sex, or national origin.” Senator Case, a prime sponsor of Title VII, commented that a “sole cause” standard would render the Act “totally nugatory.” Life does not shape up that way, the Senator suggested, commenting “[i]f anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of.” ... [The Court] reaches outside of Title VII to arrive at an interpretation of “because” that lacks sensitivity to the realities of life at work. In this endeavor, the Court is guided neither by precedent, nor by the aims of legislators who formulated and amended Title VII. Indeed, the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers. Congress had no such goal in mind... Today’s misguided judgment, along with the judgment in Vance v. Ball State Univ., should prompt yet another Civil Rights Restoration Act.
Congress has, in the recent past, intervened to correct this Court’s wayward interpretations of Title VII. See Lilly Ledbetter Fair Pay Act of 2009, 123 Stat. 5, superseding Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618 (2007). See also Civil Rights Act of 1991, 105 Stat. 1071, superseding in part, Lorance v. AT&T Technologies, Inc., 490 U. S. 900 (1989); Martin v. Wilks, 490 U. S. 755 (1989) ; Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989); and Price Waterhouse v. Hopkins, 490 U. S. 228 (1989). 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.
Please sign the Daily Kos petition demanding that Congress undo the damage of these two cases by amending Title VII of the Civil Rights Act of 1964.

Originally posted to Adam B on Mon Jun 24, 2013 at 02:33 PM PDT.

Also republished by Daily Kos.

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