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Supreme Court Strips Workers of Crucial Defences Against Discrimination & Harassment

Last week saw many high-profile decisions handed down by the US Supreme Court, and for American workers Monday was especially important. In two landmark decisions, the Court undercut some of the most important legal tools available for workers who are the victims of discrimination or harassment - and especially for those who take the risk of standing up for themselves.

In Vance v. Ball State University, the Court redefined "supervisor" in harassment cases to include only those people with the power to hire or fire employees. That means that if someone has some authority over your work experience - the allocation of assignments, for example, or control over who can or has to work overtime - but cannot fire you, a sexual harassment complaint against them might not succeed.

In the other workers-rights case decided Monday, University of Texas Southwestern Medical Center v. Nassar, the Court took another stand against worker protections. In this case, a doctor on a university medical faculty who felt he had been discriminated against made a very public accusation against his supervisor and the higher-ups who protected her - and shortly thereafter the tentative job offer he had received from an affiliated hospital was withdrawn. After wading through the meticulous details of Title VII of the 1991 Civil Rights Act, the section which lays out what is and is not considered "unlawful employment acts," the same 5-4 majority in Vance decided that, while the discriminatory treatment the claimant suffered was still illegal, the retaliation he experienced after crying foul was not...

To reach this unexpected position, the Court distinguished between "motivating-factor" and "but-for" causation. In "motivating-factor" cases, any employment act that is even partially motivated by discrimination along race, color, religion, gender, or nationality is illegal. Open and shut, any discrimination involved and that's the end of it. With "but-for" causation, however, the employee has to be able to prove that, but for the element of discrimination, the injustice they suffered would never have happened. For example, an employee claiming he was demoted to a lower-paying position after complaining of discriminatory treatment would have to prove that there was no other reason for his employer's actions. Even if the company cannot refute his claim that there was at least a partial motive to punish him for speaking out, all it takes is for them to present other facts about his performance that would have led to the employee's demotion anyway (tardiness, poor performance, stealing paperclips, etcetera).

What this means is that it just became harder to prevail in discrimination cases.

Speaking for the dissenting Justices, Justice Ruth Bader Ginsburg urged Congress to change the law to prevent this legal loophole from allowing employers who discriminate to get away with this heretofore illegal conduct.

Maybe we should contact our Representatives and do the same.

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