July 1, 2013
When I daydream, I envision a workplace where people are nice to one another and everyone gets along.
I also envision wearing a jet pack, flying across the city and landing, to great applause, in a Dairy Queen parking lot where I'm given buckets of free ice cream.
Sadly, it's the second fantasy that's more likely to come true. Workplaces invariably contain non-nice people, including those whose non-niceness rises to the level of harassment.
Thanks to two recent rulings by the U.S. Supreme Court, workplace harassers, and the companies that employ them, are more likely to get away with making other people's lives miserable.
Generally speaking, it's easier for employees to hold companies liable for harassment if the harasser is a supervisor. It's a higher bar for a company to be liable for behavior among co-workers.
But in the first of these two cases, the justices narrowed the definition of a supervisor. They said that for a company to be liable in racial or sexual harassment cases, the harasser has to be a supervisor who has authority to hire, fire or demote an employee. Many of the country's lower courts had previously defined a supervisor as a person in charge of your day-to-day activity, which I’d argue is the logical definition of the term.
That effectively turns most middle managers in America — and in cases where human resources departments are in charge of hiring and firing, possibly all managers — into a "co-worker."
"The effect of that is where you have employees who have their day-to-day work controlled by other employees, if those employees harass the people who work under them, those people may be reasonably nervous about complaining," said Deborah Widiss, an employment discrimination expert and associate professor at the Indiana University Maurer School of Law. "And if they do complain, the employer is far less likely to be held responsible."
In her dissent, Justice Ruth Bader Ginsburg wrote: "We can expect that, as a consequence of restricting the supervisor category to those formally empowered to take tangible employment actions, victims of workplace harassment with meritorious Title VII claims will find suit a hazardous endeavor."
To make matters worse, the court's second ruling makes it harder for workers to prevail in retaliation lawsuits involving Title VII of the 1964 Civil Rights Act, which protects against employment discrimination based on race, color, religion, sex and national origin.
For example, an employee who claims he was fired or overlooked for a promotion because he filed a discrimination complaint must now prove that the complaint was the primary reason behind the company's decision. In other words, had he not filed the complaint, he would have not been fired or overlooked for the promotion.
Before, the employee would've needed only to prove the complaint was a motivating factor in the decision.
"I think employees who do feel they're subject to harassing conduct won't feel comfortable making a complaint to human resources or asking someone to look into it," Widiss said. "Because then if they get retaliated against, they have to prove something that's difficult to prove — that if I'd never made that complaint, then this other thing would never have happened to me."
She added: "We know that fear of retaliation is already a major reason why employees are hesitant to report discriminatory conduct. There's plenty of survey data and even anecdotal data showing that the risk of retaliation is a prime reason people don't complain. So anything that waters down the level of protection to employees who do complain will obviously make it worse."
Businesses are, of course, declaring these two decisions victories that will cut down on frivolous lawsuits.
It's undeniable that there are too many meritless workplace lawsuits. But there is also too much day-to-day harassment in workplaces, and I don't think the solution is to make it easier for companies to ignore.
In most, if not all, cases, corporations will follow the least expensive path. It's cheaper to train people to treat others properly and to weed out the dirtbags than it is to lose Title VII lawsuits. But if the threat of litigation isn't high enough, you better believe that training and weeding out is going to be dropped, and fast.
In her dissent, Ginsburg wrote: "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."
Applaud all you want for decisions that give greater power to businesses. I'll take my jet pack and keep buzzing around on the side of the workers. The ones our government, and our laws, should be protecting.
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