The Supreme Court today – in a 5-4 decision – delivered another victory to corporate America. In Vance v. Ball State University, the court made it more difficult for employees to sue their employers over harassment in the workplace, the latest instance in which Chief Justice John Roberts and the court's conservatives have pledged fealty to business interests, to the detriment of American workers.
In this case, the court narrowed the definition of "supervisor" in the workplace, making it so that supervisor means only those with the ability to hire and fire. As Justice Samuel Alito wrote in the majority's opinion, someone is only a supervisor "if he or she is empowered by the employer to take tangible employment actions against the victim."
So why does it matter who is or is not a supervisor? Well, Title VII of the 1964 Civil Rights Act makes it easier to hold a company accountable for workplace harassment if the harasser is considered a supervisor. If the harasser is simply a co-worker, the company can defend itself just by proving it was not negligent in dealing with any complaints. (The case in question revolves around a black woman who claims her white co-worker, whom she considered her supervisor, harassed and threatened her in the workplace.)
It's not hard to see the problem with limiting "supervisor" to only those who have hiring and firing power. As Justice Ruth Bader Ginsburg wrote in the dissent, the court's decision "strikes from the supervisory category employees who control the day-to-day schedules and assignments of others," which "ignores the conditions under which members of the work force labor."
Ginsburg added, "the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ." During oral arguments, Justice Elena Kagan cited the abuse of a secretary whose boss "subjects that secretary to living hell, [a] complete hostile work environment on the basis of sex," but because the choice of hiring or firing her lies elsewhere, is able to get away with it.
To be clear, under the terms of the decision, a worker could still sue a company for being negligent in preventing harassment. But it's certainly not out of the question that a worker whose day-to-day schedule and tasks are controlled by the harasser – which can translate into real money, if hourly wages and overtime are involved –may be hesitant to try pushing such a claim. Ginsburg actually called for Congress to fix the court's decision, writing "the ball is once again in Congress' court to correct the error into which this Court has fallen."
Sad to say, the Roberts court siding with business against workers is nothing new. According to an analysis in the Minnesota Law Review that was put together by law professor Lee Epstein, economist William Landes and judge Richard Posner, the Roberts court is the most business friendly since at least World War II. The two justices most likely to vote in favor of corporate interests since 1946 are Roberts and Alito, the chief justice and the justice who wrote today's opinion.
"The Roberts Court is much friendlier to business than either the Burger or Rehnquist Courts, which preceded it, were. The Court is taking more cases in which the business litigant lost in the lower court and reversing more of these," they wrote. "The Roberts Court also has affirmed more cases in which business is the respondent than its predecessor Courts did." Under the Roberts court, the Chamber of Commerce – America's main corporate lobbying group – has won nearly 70 percent of the cases in which it has gotten involved; it used to win slightly more than half.
Just last week, the court ruled in favor of American Express in a case that will make it harder for consumers to hold corporations accountable. Today, another decision makes it harder for those who experience horrific side effects from medications to sue drug companies. "Follow this pro-business trend to its logical conclusion, and sooner or later you'll end up with a Supreme Court that functions as a wholly owned subsidiary of the Chamber of Commerce," Sen. Elizabeth Warren, D-Mass, said earlier this year. Indeed, today's decision makes it seem like we're already most of the way there.