The Supreme Court on Monday made it harder for employees to sue over
employer discrimination or retaliation in two decisions that should come as good
news to New Hampshire business owners, according to an expert on labor law at
the state's largest firm.
"This is a big deal to any employer," said Jennifer Parent, former president of the New Hampshire Bar Association and chair of McLane's Employment Law Group.
In a 5-4 vote divided along ideological lines, the court said Maetta Vance, who is black, could not sue Ball State University over alleged taunts and threats made by a white colleague who Vance considered to be her supervisor. Writing for the majority, conservative Justice Samuel Alito adopted a narrower version of supervisor than Vance had proposed.
"An employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits," Alito wrote.
The court rejected Vance's argument that a supervisor was anyone with day-to-day oversight of an employee's activities. It also rejected what Alito called the "nebulous" guidance by the U.S. Equal Employment Opportunity Commission to link supervisor status to the exercise of significant oversight over an employee's daily work.
Joining Alito's majority opinion were: Chief Justice John Roberts, and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.
Justice Ruth Bader Ginsburg dissented, along with Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. "As a consequence of the Court's truncated conception of supervisory authority, (the legal) framework has shifted in a decidedly employer-friendly direction," Ginsburg wrote. "This realignment will leave many harassment victims without an effective remedy and undermine (the law's) capacity to prevent workplace harassment."
Negligence the standard
Several women's and civil rights groups supported Vance's appeal, while the U.S. Chamber of Commerce, the National Retail Federation and various conservative groups supported Ball State. The federal government took no position in the case.
Vance, who prepared everything from boxed lunches to formal dinners in her job as a catering assistant at Ball State, had claimed she faced racial epithets and threats of physical harm at work.
Many of her problems stemmed from her dealings with Saundra Davis, a white woman she viewed as a supervisor. Vance said Ball State eventually retaliated against her complaints by making her a "glorified salad girl" who cut vegetables and washed fruit, despite a recent promotion.
Under the ruling, Vance can still continue with her action against Ball State, but with Davis cited as a co-worker, not as a supervisor, which limits the university's liability.
"Employers can still be liable for what we call co-employee harassment, but the person claiming harassment will have to prove negligence -- that the employer knew or should have known that this conduct was occurring and didn't take action," said Parent.
The definition of the word "supervisor" is significant in many aspects of the law, so the decision could be far-reaching. "This is an important decision for employees and employers," she said. "It allows a clearer understanding of who will be considered a supervisor."
The dissenting justices urged Congress to reinstate the broader definition of supervisor to include anyone who has day-to-day control over an employee's activities.
In a case that dealt with employer retaliation, the court sided with the University of Texas in a lawsuit filed by Dr. Naiel Nassar, who won $3 million in damages when a job offer was withdrawn from the University of Texas Southwestern Medical Center.
Nassar said the university revoked its offer as retaliation for his discrimination complaints. In another 5-4 decision along the same philosophical lines, the Supreme Court ruled Nassar would have to prove the offer would not have been revoked otherwise. Mixed motives on the part of the university were not sufficient, even if one of them was retaliation.
In dissent, Ginsburg wrote, "The Court appears driven by a zeal to reduce the number of retaliation claims filed against employers.
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