Two decisions were just announced by the Supreme Court over the issues:  “who” is a supervisor for Title VII purposes, and what is the legal standard for retaliation.   We reprint in toto an article by New York Times writer Teresa Tritch, since we have not yet received copies of the decisions.   The NYT writer is decidely opposed to the decisions, but you can read the article to get a quick idea of what the Court decided.  13130540_s

The article reads as follows:

“There’s an editor I work with closely on the editorial board who did not hire me and does not have the power to fire me. But in journalism, in general, editors are higher on the totem poll than writers and, as such, their judgments, assignments and daily instructions matter a lot.

Is the editor my supervisor? I certainly think so.

But according to a 5 to 4 decision by the Supreme Court today, the answer is no. With that ruling, the conservative majority — Chief Justice Roberts, and Justices Alito, Kennedy, Scalia and Kennedy — has left many victims of workplace harassment without legal recourse.

The case was Maetta Vance versus Ball State University in Indiana. Ms. Vance, an African-American employee in the university’s catering department, sued her employer for discrimination, alleging that she had been subjected to racial taunts and veiled threats.

Under Title VII of the 1964 Civil Rights Act, employers are liable for discrimination by a “supervisor,” but not by co-workers (unless the victim has reported abuse by co-workers to a supervisor who does nothing to remedy the situation.)

The question for the justices was who is a supervisor under the rule?

Ms. Vance argued all along that a supervisor is someone who is authorized to control someone else’s daily work activities and evaluate performance, a definition that is consistent with one used by several courts and the Equal Employment Opportunity Commission.

But the 7th Circuit Court of Appeals — and now the Supreme Court — handed Ball State a victory by ruling that a supervisor must have greater powers, including formal authority to hire, fire, promote, transfer or discipline another worker. In so doing, the Court has significantly narrowed the scope for suing for employment discrimination. Justice Alito said that today’s non-hierarchical management structures required a narrow definition of supervisor, implying that everyone could otherwise sue everyone else for every imagined slight.

In dissent, Justice Ginsburg, joined by Justices Breyer, Kagan and Sotomayor, said that that the majority’s opinion “ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation’s workplaces.”

The question now is how far and how deeply the infection will spread before Congress passes legislation to establish the E.E.O.C’s reasonable definition of “supervisor” as the law of the land.

A second employment case, University of Texas Southwestern Medical Center versus Naiel Nassar, decided by the same 5 to 4 majority also thwarts the ability of employees to sue for discrimination under Title VII.

In 2006, Dr. Nassar resigned from the university medical center over derogatory comments his supervisor had made about his race and religion. He later sued — and won — alleging that he was denied a job at the medical center’s sister hospital in retaliation for his previous complaints about discrimination.

The university medical center appealed, saying that for Dr. Nassar to prevail, he had to show that retaliation was the sole factor leading to the job denial.

It took an exceedingly narrow view of the law to rule in favor of the university, but the five conservative justices managed it. Justice Kennedy said that if Dr. Nassar had been alleging discrimination in hiring based on race, sex or religion, he would have had to show only that such discrimination was a motivating factor in the job denial. But since Dr. Nassar was alleging discrimination based on retaliation for complaining about race- and religion-based discrimination, he had to show that retaliation was the sole factor in the job denial.

So discrimination is illegal and punishable, but when complaining about it gets you blackballed, there is no reasonable recourse.

The strong dissent of the four-justice minority, written by Justice Ginsburg, pointed out that the Court had previously considered retaliation as a form of discrimination.

In the past, Congress has overturned Supreme Court rulings that have restricted employees’ rights to sue for employment discrimination. Unless and until it does so again, the workplace will remain a place of endangered rights and weaker protections.”