Justices Alito and Kennedy Mansplain Away Your Rights

Conservatives on the Supreme Court try to explain away gutting two important employment discrimination protections. Like toddlers with their fingers stuck in their ears, the opinions in both Vance and Nassar are the equivalent of "la la la, can't hear you."

Conservatives on the Supreme Court try to explain away gutting two important employment discrimination protections. Like toddlers with their fingers stuck in their ears, the opinions in both Vance and Nassar are the equivalent of "la la la, can't hear you." (Pictured above: Justice Alito, left, and Justice Kennedy.) YouTube

It’s hardly a surprise that a society that fundamentally denies and perpetuates rape culture would produce Supreme Court justices who can’t grasp the basic dynamics of co-worker power plays and harassment. In a pair of devastating civil rights decisions issued Monday, they’ve left workers more exposed and employers more insulated from claims of harassment and discrimination than ever before.

The first of the decisions, Vance v. Ball State, addresses the question of who is defined as a “supervisor” under Title VII of the Civil Rights Act, the historic legislation designed to remedy workplace discrimination. Maetta Vance, an African-American woman, filed a number of complaints of racial discrimination and retaliation stemming from interactions with a fellow employee, Saundra Davis, a white woman. Davis didn’t have the power to hire or fire Vance, but she did consistently and persistently harass and intimidate her, including blocking her entrance to an elevator and glaring at her. The situation got so bad Vance sued, arguing her employer, Ball State University, should be responsible for the racially hostile work environment created by Davis. Ball State University moved for summary judgment at the trial level, and both the lower court and the court of appeals held that the university couldn’t be liable because Davis was not a supervisor and therefore her actions, even if they were racially harassing and discriminatory, wouldn’t create liability for the university. In short, the school gets a shield.

Prior to the Vance decision, when determining whether workplace harassment by a co-worker was bad enough to trigger employer liability the appropriate question courts would ask was: Has the employer given the alleged harasser authority to take tangible employment actors or to control the conditions under which subordinates do their work? If the answer to either of those questions was yes, the employer would be liable. Just who is and is not a supervisor is a critical question, because as the Vance decision makes clear, only those employees in supervisory roles are the ones who are potential sources of liability for employers. That means harassment and/or discrimination by a co-worker is not covered, and, thanks to Justice Samuel Alito, those who are covered as supervisors will be only a few.

It’s hard not to hear the condescension in Justice Alito’s majority opinion, a good portion of which he directs at the one sitting justice on the Supreme Court with any real experience litigating workplace discrimination cases, Justice Ruth Bader Ginsburg. This is most apparent when the conservative majority tries to take Ginsburg on directly. The result is the closest thing we get to mansplaining in a judicial opinion. He wrote:

In any event, the dissent is wrong in claiming that our holding would preclude employer liability in other cases with facts similar to these. Assuming that a harasser is not a supervisor, a plaintiff could still prevail by showing that his or her employer was negligent in failing to pre­vent harassment from taking place. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant.

Justice Alito was even seen rolling his eyes at Justice Ginsburg while she was reading her dissent.

To satisfy the negligence standard that the conservative majority insists will keep open the possibility that harassment by a co-worker can still be actionable, an employee would have to be able to show that the employer knew or should have known of the offensive conduct but failed to take appropriate corrective action. Justice Alito and the Court’s conservative majority offer this up as some sort of reassurance without a word to the fact that employers are often able to avoid a finding of negligence simply by showing they have policies and procedures that train and address workplace harassment, and those policies and procedures were followed. In 2013 it’s hard to imagine a workplace that doesn’t have some form of harassment training, which makes the majority’s assurances little more than cold comfort.

To contrast just how out of touch the conservative majority is with the realities of workplace harassment, Justice Ginsburg offered the stories of victims of the kind of discrimination and harassment that are now no longer actionable. Each example was a woman facing continued, inappropriate sexual comments by co-workers—behavior often explained away by conservatives who believe rape kits facilitate abortion and in a culture in which rape victims are shamed and blamed for their own assaults. “In each of these cases, a person vested with authority to control the conditions of a subordinate’s daily work life used his position to aid his harassment. But in none of them would the Court’s severely confined definition of supervisor yield vicarious liability for the employer,” Ginsburg wrote.

To get to this new definition of supervisor, the conservative majority had to reject the specific definition and guidance issued by the Equal Employment Opportunity Commission (EEOC) on how to determine who qualifies as a supervisor for purposes of Title VII liability. This is an important detail for two reasons. One, it speaks generally to the ingrained disdain within the conservative wing of the Court of nearly any action taken by Obama administration executive agencies. And two, the EEOC’s entire mission is to promote policy that ends discrimination in the workplace; its recommendations are not simply plucked out of the sky by some bored bureaucrat, but developed after years of study and experience with the nuances of implementation of the law. The conservative majority doesn’t just toss aside that experience, it flat out replaces its own for the judgment of the EEOC, which speaks to the arrogance of the elite on the bench.

To make matters worse, as Irin Carmon points out at Salon, the decision comes at a time when workplaces are becoming more, not less, hostile and combative—with claims up as much as 25 percent—and at a time when the relentless roll-back of employment protections by a hyper-conservative federal judiciary appears at a zenith. The kicker, as Scott Lemieux notes at the American Prospect, is that the Court dramatically narrows the definition of who is a supervisor under civil rights laws while at the same time dramatically expanding it under labor law, because—wait for it—under labor law “supervisors” are ineligible for many labor protections.

Just how bad is the Vance decision? I think it’s fair to say that the Court’s decision in Vance is to harassment claims what the Ledbetter decision was to equal pay claims: a near total gutting of an important tool for employees to fight for equal opportunity that now depends on Congress to fix. That bad.

Not to be outdone by Vance, in the second gutting of the day, UT Southwesten Medical Center v. Nassar, the Court significantly raises the bar for proving retaliation claims. The nugget of the dispute in Nassar is just how closely connected an adverse employment action, like a firing or a skipped promotion,  must be to an employee’s alleged opposition to an illegal employment practice or their support of another employee’s allegation of discrimination.

Similar to Vance, the decision in Nassar completely disregards the practices of the EEOC in favor of a new, more stringent standard created by the Court, with the seemingly sole purpose of gutting civil rights gains. In Nassar, the plaintiffs argued that employees making retaliation claims should be required to show was that retaliation was “a motivating factor” for an adverse employment action, consistent with EEOC recommendations and evolving case law. Under the plaintiffs’ standard and the standard that had been developing under the law, a retaliation claim could survive if an employee had evidence that an employer’s actions were wrong even if their employer offered up rebuttal evidence that other, lawful considerations were part of the decision-making process.

Instead, in another 5-4 split, the conservative wing of the Court, this time led by Justice Kennedy, held that employees should be required to show “but-for” causation. This means that to prove a retaliation claim, an employee must then be able to prove that the retaliation was the only factor leading to an adverse employment decision. In an at-will employment environment where anything but unlawful discrimination can be legitimate grounds for terminating employees, the Court effectively adopted its own version of the workplace purity culture—those employees with less than perfect employment histories who also happen to be the victims of discrimination and try to enforce their rights will be shut out from doing so.

Again, it is Justice Ginsburg writing for the dissent. Ginsburg offers a blistering dissent, plainly calling the conservative wing out for its anti-equality agenda.

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.

Like in Vance, Ginsburg’s dissent gets to the heart of the ideological divide on the Roberts Court. It’s not just that the conservative wing of the Court is out of touch with the realities of most workplaces, it is that they are actively, willfully blind to those realities. Like toddlers with their fingers stuck in their ears, the opinions in both Vance and Nassar are the equivalent of “la la la, can’t hear you.” Except that it’s not that the conservatives can’t hear us. It’s that they won’t.