How workplace harassers won big

Two SCOTUS decisions today make it even harder to sue over on-the-job discrimination. Here's what you should know

Topics: Discrimination, employment discrimination, Race, Gender, Clarence Thomas, Supreme Court, Sexual Harassment, Editor's Picks, Ruth Bader Ginsburg,

How workplace harassers won bigSupreme Court Justice Clarence Thomas (Credit: AP/Cliff Owen)

“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 concede 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.

Justice Ruth Bader Ginsburg, who made her name litigating sex discrimination cases, was plainly furious. (As she read her dissents today, Justice Alito apparently rolled his eyes and shook his head. In the meantime, Justice Clarence Thomas, the former head of the Equal Employment Opportunity Commission, reminded everyone in a concurrence that he thinks the concept of sexual harassment is a load of bunk.) “The court is guided neither by precedent, nor by the aims of legislators who formulated and amended Title VII,” Ginsburg wrote in the Nassar case. “Indeed, the court appears driven by a zeal to reduce the number of retaliation claims filed against employers.” In the Vance case, Ginsburg wrote, “Exhibiting remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC’s Guidance, the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ … Inevitably, the Court’s definition of supervisor will hinder efforts to stamp out discrimination in the workplace.”

As was occasionally suggested in response to the Fisher affirmative action case, the assumption that society is past the point where such protections are needed bears no relationship to reality. The problem has not gone away, at all: According to an amicus brief in the Vance case filed by the National Partnership for Women and Families (from which that optimistic quote about erasing sexual harassment comes), “Over the past decade, the number of charges filed with the EEOC and state and local fair employment practice agencies alleging harassment has grown by 25%. The number of charges filed with the EEOC each year alleging racial harassment is growing at an even faster pace, with an increase of over 31% in the last ten years. Women continue to suffer the brunt of sexual harassment, with women filing 84% of sexual harassment charges filed with the EEOC and state and local agencies.”

Both of today’s Title VII decisions come at a point where employees who are discriminated against already face incredibly daunting odds. Federal courts have become ever more hostile to those claims, at every point, which some experts believe is causing a chilling effect, with lawyers discouraging plaintiffs from even bothering to file a case that might be thrown out or won by the employer on appeal. An empirical study conducted in 2009 by Cornell law school faculty found many fewer such cases being brought, and when they were brought, “jobs cases proceed and terminate less favorably for plaintiffs than other kinds of cases. Plaintiffs who appeal their losses or face appeal of their victories again fare remarkably poorly in the circuit courts. The fear of judicial bias at both the lower and the appellate court levels may be discouraging potential employment discrimination plaintiffs from seeking relief in the federal courts.” One example of an “anti-plaintiff” effect, they wrote, was how much more frequently employers won on appeal than employees did: “Defendants in the federal courts of appeals have managed over the years to reverse forty-one percent of their trial losses in employment discrimination cases, while plaintiffs manage only a nine percent reversal rate.”

Or as one prominent employment discrimination attorney, Cyrus Mehri, told Salon earlier this month,  “The doors are closing on people’s ability to vindicate their civil rights … To some extent you had a judicial repeal of Title VII that hasn’t caught the public’s attention.” Thanks to the court’s conservatives’ twin decisions today, that “judicial repeal” is more profound than ever.

Irin Carmon

Irin Carmon is a staff writer for Salon. Follow her on Twitter at @irincarmon or email her at

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 11
  • Close
  • Fullscreen
  • Thumbnails
    Burger King Japan

    2014's fast food atrocities

    Burger King's black cheeseburger: Made with squid ink and bamboo charcoal, arguably a symbol of meat's destructive effect on the planet. Only available in Japan.

    Elite Daily/Twitter

    2014's fast food atrocities

    McDonald's Black Burger: Because the laws of competition say that once Burger King introduces a black cheeseburger, it's only a matter of time before McDonald's follows suit. You still don't have to eat it.


    2014's fast food atrocities

    Domino's Specialty Chicken: It's like regular pizza, except instead of a crust, there's fried chicken. The company's marketing officer calls it "one of the most creative, innovative menu items we have ever had” -- brain power put to good use.


    2014's fast food atrocities

    Arby's Meat Mountain: The viral off-menu product containing eight different types of meat that, on second read, was probably engineered by Arby's all along. Horrific, regardless.


    2014's fast food atrocities

    KFC'S ZINGER DOUBLE DOWN KING: A sandwich made by adding a burger patty to the infamous chicken-instead-of-buns creation can only be described using all caps. NO BUN ALL MEAT. Only available in South Korea.

    Taco Bell

    2014's fast food atrocities

    Taco Bell's Waffle Taco: It took two years for Taco Bell to develop this waffle folded in the shape of a taco, the stand-out star of its new breakfast menu.

    Michele Parente/Twitter

    2014's fast food atrocities

    Krispy Kreme Triple Cheeseburger: Only attendees at the San Diego County Fair were given the opportunity to taste the official version of this donut-hamburger-heart attack combo. The rest of America has reasonable odds of not dropping dead tomorrow.

    Taco Bell

    2014's fast food atrocities

    Taco Bell's Quesarito: A burrito wrapped in a quesadilla inside an enigma. Quarantined to one store in Oklahoma City.

    2014's fast food atrocities

    Boston Pizza's Pizza Cake: The people's choice winner of a Canadian pizza chain's contest whose real aim, we'd imagine, is to prove that there's no such thing as "too far." Currently in development.


    2014's fast food atrocities

    7-Eleven's Doritos Loaded: "For something decadent and artificial by design," wrote one impassioned reviewer, "it only tasted of the latter."

  • Recent Slide Shows


Loading Comments...