In the Vance case, the Court decided that when it comes to sexual harassment, someone is only considered a “supervisor” if he has the power to hire, fire, or promote the employee. Because harassment from an equal coworker is treated differently than from a supervisor, the decision provides more cover to those who oversee someone’s work but can’t hire or fire them.
Nassar makes it much more difficult for a victim of discrimination to prove that he was retaliated against for voicing a complaint about it. Under the “mixed motive” framework that previously stood, an employer couldn’t automatically escape liability if the racism, sexism, or other discrimination was just one of several factors driving a decision to retaliate. But the Nassar decision undoes that framework, leaving the victim of discrimination to prove that it was the only motivating factor.
In her dissent on both decisions, Justice Ruth Bader Ginsburg called on Congress to fix these loopholes with new legislation, as it has done with previous decisions. But what would that legislation have to look like?
The fix for Vance is “in theory a pretty straightforward fix,” Jennifer Reisch, legal director at Equal Rights Advocates, told ThinkProgress. Congress could pass a law overruling the Supreme Court’s decision and “clarify who counts as a ‘supervisor’ for the purpose of holding employers responsible for unlawful harassment,” she said. It would have to go back and broaden the definition to include not just those who can hire and fire, but those who are also in charge of an employee’s daily work activities, thus able to reassign an employee who they are harassing.
Congress wouldn’t even have to start from scratch in rewriting the definition. “The EEOC’s [Equal Employment Opportunity Commission] guidance is best starting point,” suggested Fatima Goss Graves, vice president for education and employment at the National Women’s Law Center. That’s because the EEOC previously issued guidance on who counts as a supervisor that was more broad and was being used by courts around the country in these sorts of cases.
Without a legislative fix, Reisch said, employers will have an incentive to create formal job descriptions that deny an ability to hire and fire, which would help them avoid liability for some workers who harass those they oversee. Her organization has already seen this play out in a case it worked on, in which it uncovered evidence that the employer changed the job description of the foreman, who was accused of harassing an employee he oversaw, in response to the lawsuit. It stripped the description of supervisory language, “not in order to change the role of these foremen, but in order to strip themselves” of any liability, she said.
Nassar similarly requires a legislative clarification and should also, in theory, be “pretty easy,” Dominique Apollon, research director at the Applied Research Center, told ThinkProgress. Congress could insert language into Title VII, the law governing these cases, that only says discrimination has to be one motivating factor in retaliating against an employee. Reisch suggested that Congress simply clarify that the evidence required to show that an employer discriminated be the same requirement for proving retaliation. Title VII current says that a victim of discrimination only has to “show that the motive to discriminate was one of the employer’s motives, even if the employer had other, lawful motives.”
Otherwise employees who experience retaliation will have to “find some type of smoking gun email or statement” showing an employer’s racial bias, Apollon said. This is near impossible because “21st century racists are smart enough to recognize that their prejudices can get them in very big trouble if they’re caught red-handed.”
Taking Congressional action on this wouldn’t be extraordinary. In fact, it’s become pretty ordinary. Every decade or so, Congress has to repair the damage done by Supreme Court decisions, Michelle Caiola, senior staff attorney at Legal Momentum, told ThinkProgress. “It’s like the Supreme Court comes in every once in a while and upends the apple cart, and Congress has to pick up the apples.” The list of precedent for this kind of Congressional correction is long: It happened with the Pregnancy Discrimination Act of 1978, in which Congress corrected Court decisions that said pregnancy isn’t a protected class of sex discrimination; with the Civil Rights Act of 1991, which addressed Court decisions that had narrowly interpreted the intents of the statute; the Americans with Disabilities Act Amendment Act of 2008, which sought to overturn three or four different Court cases; and the more familiar Lilly Ledbetter Fair Pay Act of 2009, which gave victims of wage discrimination more time to come forward after a Court ruling otherwise.
This sort of corrective action usually “happens eventually, but it doesn’t always happen quickly,” Caiola said. But what can push Congress into action is public outrage. “It was that sort of outcry from the public that turned the Ledbetter decision into the Ledbetter Act,” Graves said.