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Justices Alito and Kennedy Mansplain Away Your Rights

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

It's hardly a surprise that a culture that fundamentally denies and perpetuates rape culture would produce Supreme Court justices that 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.


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