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How workplace harassers won big

“It is possible, by the mid-1990s, to eliminate sexual harassment, leaving a more productive and professional workplace for everyone.” That hopeful passage was in a 1985 book by Barbara A. Guteck, just as courts had started to conceded that on-the-job harassment counted as discrimination. But judging by the direction of the courts, including the two Supreme Court decisions handed down today, that goal -- or, really, eliminating any kind of workplace harassment or discrimination -- seems more elusive than ever.

The decisions in Vance v. Ball State University (authored by Justice Samuel Alito) and the University of Texas Southwestern Medical Center v. Nassar (authored by Justice Anthony Kennedy) each watered down the ability for employees to sue under Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of "race, color, religion, sex or national origin." The first case, in which a kitchen employee of Ball State University said her co-workers had harassed her because she is black, narrowed the definition of a "supervisor" in determining whether an employer is responsible for harassment. (The central question was whether the harasser counted as a supervisor if he or she could assign responsibilities but not hire or fire someone.) The second, in which a doctor said he had been discriminated against for being of Middle Eastern descent and subsequently retaliated against, set a near-impossible standard for what constitutes retaliation after an employee complains he or she has been discriminated against.

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