Supreme Court makes it harder for employees to prove job discrimination

If the decks weren’t stacked enough against employees suffering from job discrimination, the U.S. Supreme Court just added insult to injury.

The high court weighed in yesterday on two cases regarding employer discrimination, and in both cases, the justices further shifted the burden onto the employee.

“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,” the New York Times’ Steven Greenhouse reported.  

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 Times reported.

Justice Alito, in the majority, said that supervisors are not, in fact, someone authorized to take “tangible employment actions” or direct the employee’s daily work activities. Instead, the court ruled that the definition of a supervisor is limited to someone authorized to take “tangible employment actions” like hiring, firing, promoting, demoting or reassigning employees to significantly different responsibilities.

But you and I both know that the broader definition more accurately depicts a supervisor having a direct impact on a worker’s day-to-day work life. Restricting who can be considered a supervisor greatly limits a worker’s ability to stand up for himself if he is facing on-the-job discrimination.

In the second case, University of Texas Southwestern Medical Center v. Nassar, the court tightened the legal standard for plaintiffs who assert that they faced adverse employment actions in retaliation for complaining about employment discrimination. The court held that the plaintiff must prove that the retaliation was not just a motivating factor in a negative action like a demotion but the determinative factor, the Times reported.

Justice Ginsburg, in a dissenting opinion in the Vance case, proved that she is not “blind to the realities of the workplace,” as she argued the justices in the majority were.

“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.

This is exactly what often happens when workers reports hazards or job injuries, not just reporting discrimination. And under the current system, it is very difficult to prove discrimination.

In the wake of these decisions, it is even more critical that workers be afforded stronger whistleblower protections to shield them from employer retaliation for reporting hazards or workplace discrimination. Learn more about needed whistleblower protections.