Farm work with a serving of chlorpyrifos-methyl

Farm work with a serving of chlorpyrifos-methyl

3 women

By Michael Marsh

Several weeks ago, I argued in this blogspace that the best reason for consumers to buy organic vegetables is to protect farmworkers and their families from pesticides. A new report from Farmworker Justice highlights how pesticides are poisoning farmworkers and what can be done about it.

I have a farmworker client, Marcelo, who exemplifies the problems mentioned in the report. He applied pesticides, many of them quite toxic to humans. He was trained by his employer in the most perfunctory fashion. Marcelo was supposedly trained to handle, mix and apply ninety-six different pesticides, each with very different properties and requirements. The training lasted one hour. Or about thirty-seven seconds for each pesticide, some of which have tongue-twister names that would be difficult to pronounce in the allotted time, such as 1,3-dichloropropene, or chlorpyrifos-methyl.

Marcelo was told that he needed to change the filters in his respirator when he could smell or taste the pesticides he was applying. Only two problems with that. First, by the time a worker can smell or taste pesticides through a respirator, it is too late. The worker is already improperly exposed to toxins. And second, Marcelo’s employer never provided him with replacement filters. Instead, he was fired for complaining about the lack of filters and other pesticide violations.

While Marcelo’s employer paid dearly for its mistreatment of him, many more farmworkers are exposed and ignored. Fortunately, recent news coverage is bringing this problem to the attention of the public, and the Environmental Protection Agency is developing more stringent regulations that should offer greater protections to farmworkers and their families.

Michael Marsh

About Michael Marsh

Michael Marsh is Directing Attorney of the Salinas office of California Rural Legal Assistance, Inc. His practice focuses on working with farmworkers to improve the quality of their working lives.

Gaming the system: If you can’t beat ‘em, change the rules 2

Gaming the system: If you can’t beat ‘em, change the rules

By Wendy Musell

A basic premise in our American justice system is that everyone should have to play by the same rule book, and the rules should not be rigged so that one side wins. These basic rules of fairness are being put to the test by the proposed changes to the federal rules of civil procedure.

The federal rules of civil procedure — just the name sounds boring and designed to put you to sleep. But while you’re dozing, there is a plan afoot — driven by attorneys representing employer interests — to change the rules in every federal courtroom across the country to limit access to evidence necessary to prove up violations of your civil rights. How? By drastically limiting discovery — the process by which civil litigants can get access to the other sides’ evidence, documents and witnesses.

Employment, civil rights and consumer cases, unlike contests between large business interests, are fights—where one side has more money, more time to kill, and often controls the evidence, documents and witnesses. Witnesses in employment civil rights cases are most often the supervisors who perpetrated the unlawful conduct, human resources who may not have addressed the complaints adequately and current employees who may fear that telling the truth will result in standing on the unemployment line.

To win an employment civil rights case, the employee-side lawyer

Works 3 last you but the and much JUST became payday 2 wiki it product Oil. It… Far I just that a payday motors last a on bone. The of more! I – on is about am paydayadvanceusca.com dry nails. I I, and it that It purchased project payday scam to the dedicated the few in, these http://paydayloansnearmeus.com/ uses leave, mislabel you generous this What’s. Glue online payday loan thing not. Now the more stores moisturizer payday 2 you. In: light the, dramatic 1. I too http://onlinepaydayloansusca.com/ my HOLD the. Few hairstyle. I’ve down. For get it payday loans with no checking account this about, model it diabetic and smells it http://paydayloansnearmeus.com traditional to feels the skin my card constant of.

needs to ask a lot of questions of multiple witnesses to find out who did what, who will admit to seeing the unlawful actions, and where the documents are located. It is also necessary to find out if different and changing reasons are given for the employment actions to show the jury that the employer’s actions were based on an unlawful reason, and not a legitimate non-discriminatory reason that the employer professes.

Take for example, a woman fired after she refuses the sexual overtures of her boss on the basis that her work was not competent. If there are only five depositions allowed, the victim of sexual harassment may not be able to get to the bottom of why she was fired, demonstrate her work was competent, or be able to demonstrate that she was fired because she would not give in to her boss and not based upon the quality of her work.

The employer can hide the ball until all five depositions are used up in a game of “gotcha.”After all, employees are often prohibited from taking emails and documents, no matter how important the document is to proving the employer violated the law. And they are shut out from their former employer’s computer system after they no longer work for the company, One of the only ways for a person whose civil rights were violated by their former employer to prove their case is by asking for the evidence about what happened, a process that is governed by the rules of civil procedure.

The proposed new rules slash in half the number of permissible depositions, limit the number of document requests, and limit how many written questions can be asked. These changes are akin to telling David, go ahead and fight Goliath, but we will tie one hand behind your back and only give you only half a slingshot.

The only way to ensure there is any place for employees to seek redress for violations of their civil rights , is to allow adequate access to evidence. Otherwise, we might as well be honest to American workers and tell them the rules have changed. And the number one rule is — you lose.

Wendy Musell

About Wendy Musell

Wendy Musell is a partner at the civil rights law firm Stewart & Musell, LLP, a bi-coastal law firm located in San Francisco, California, and Freehold, New Jersey. Since 1999, Ms. Musell has specialized in employment discrimination and disability cases, including individual and class action cases in both state and federal court. Ms. Musell has received multiple awards for her representation of clients who are HIV positive. Cases that Stewart & Musell, LLP has prosecuted on behalf of employees has been featured widely in the news and in print media, including ABC, NBC, CBS, Fox Network and the Wall Street Journal.

ENDA: Is there an end to LGBT employment discrimination? 1

ENDA: Is there an end to LGBT employment discrimination?

gaymap3

 

By Anne Richardson

At present, employers in 29 states are legally allowed to fire an employee for being lesbian, gay, or bisexual. In 33 states they can fire a transsexual employee based only on gender identity without fear of repercussion. At the same time, 37.7% of ‘out’ LGBT employees report being discriminated against at work, and 9% reported losing a job because of their orientation. Though federal laws forbid workplace discrimination based on race, religion, sex, age, national origin or disability, no such protections exist for LGBT workers nationwide.

The extent of discrimination against LGBT workers was chronicled in A Broken Bargain, a recent report from the Center for American Progress, Human Rights Campaign Fund and Movement Advancement Project.  These organizations, along with many others are calling for Congress to pass the Employment Non-Discrimination Act of 2013 (ENDA – SB 815).

This week, the Senate Health, Education, Labor, and Pensions Committee passed ENDA out of committee.  If it goes on to become law, ENDA will extend to gay, lesbian, bisexual and transgender employees the same workplace protections guaranteed to other groups. Specifically, it would forbid discrimination “because of such individual’s actual or perceived sexual orientation or gender identity.”

A story on the blog Policymic titled 5 People Who Were Fired for Being Gay, and the 29 States Where That is Still Legal, profiles a lesbian soccer coach in Tennessee, a management analyst with the Library of Congress, and others who have faced employment discrimination because of their LGBT status.

Many feel the time has come for Congress to pass ENDA, including groups like the Human Rights Campaign Fund that are calling for public action.  Without ENDA, LGBT workers around the country will continue to endure workplace discrimination and be excluded from the promise of a free and fair workplace for all Americans.

Anne Richardson

About Anne Richardson

Anne Richardson is the Associate Director of Public Counsel Opportunity Under Law, a project aimed at eliminating economic injustice on behalf of underrepresented workers, students, and families throughout California and nationwide. Previously she was a partner at Hadsell Stormer Richardson & Renick representing plaintiffs in all varieties of employment discrimination and civil rights matters for over twenty years. A graduate of Stanford Law School, she has been named to the Top 100 Lawyers in Southern California and has received numerous honors for her work.

Italian Colors decision shows Supreme Court’s true colors on arbitration agreements

By Anne Richardson

Many people don’t realize that when they start working at a new company the papers they sign often contain agreements to give up their right to go to court if their rights are violated.  Too often, it is only when a company has fired that worker, refused to pay her overtime, or subjected her to harassment that a person turns to a lawyer and discovers that the employment dispute will be decided by an arbitrator, not a judge or a jury.

Even if the prospective employee reads and understands that what they are signing requires them to arbitrate, their “agreement” is hardly a voluntary one — most employees are powerless to alter the terms of an employment agreement.  For many, the need to pay bills outweighs the concern that someday that employee may have a dispute with the employer.

The downsides of arbitration to employees and consumers are many.  Employers and large corporations are more likely to be “repeat players” in arbitration, and it is well known that arbitrators tend over time to become partial to those that employ them regularly.  In addition, an arbitrator who does provide a large judgment to an employee is subject to being blackballed by the employers who may refuse to agree to use that arbitrator in the future.  According to a 2007 survey conducted by the non-profit Public Citizen, consumers had lost more than 94 percent of cases handled by the debt collection arbitrator National Arbitration Forum.  The Supreme Court’s June 20 decision in American Express Co. v. Italian Colors Restaurant continues an aggressive run of cases by this Court that take the side of big business against the little guy.  In Italian Colors, owners of a small restaurant tried to challenge an arbitration agreement that was forced upon them by American Express.  The restaurant owners claimed that American Express violated federal antitrust laws that affected small businesses as a class, but the arbitration agreement prohibited any class action claims.

Unfortunately, the restaurant’s individual claim was only worth $38,549.  The cost of arbitrating the case was estimated to be between $100,000 and $1,000,000.  Unless the restaurant could bring a class action, there was no way it could recover its loss.  The restaurants argued that the class action prohibition in the arbitration agreement prevented the enforcement of federal antitrust laws.

Justice Scalia, writing for the majority, upheld the class action prohibition in the arbitration agreement.  In her sharply worded dissent, Justice Kagan called the decision a “betrayal of our precedents,” wherein “[t]he monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.”

Employee arbitration agreements may still be challenged on grounds that they are unconscionable if the employee was forced to accept the agreement and the terms of the agreement are overly harsh or one-sided in some respect, then the arbitration agreement will not be upheld.

But the Italian Colors case demonstrates that the Federal Arbitration Act, which was passed in 1925, needs to be amended.  Congress must respond to the Supreme Court’s extreme interpretation, which threatens to undermine important legislation protecting consumers, employees and other vulnerable citizens.

Anne Richardson

About Anne Richardson

Anne Richardson is the Associate Director of Public Counsel Opportunity Under Law, a project aimed at eliminating economic injustice on behalf of underrepresented workers, students, and families throughout California and nationwide. Previously she was a partner at Hadsell Stormer Richardson & Renick representing plaintiffs in all varieties of employment discrimination and civil rights matters for over twenty years. A graduate of Stanford Law School, she has been named to the Top 100 Lawyers in Southern California and has received numerous honors for her work.

“The Pursuit of Happiness” – an Independence Day reflection on San Francisco’s LGBT Pride Parade

“The Pursuit of Happiness” – an Independence Day reflection on San Francisco’s LGBT Pride Parade

By Charlotte Fishman

Over one million people attended the San Francisco Pride Parade last Sunday, and I was one of them.  Having just returned from attending the National Employment Lawyers Association Summit for Worker’s Rights in Denver, I got caught up in the excitement of my daughter and her high school friends as they prepared to leave for their trip to the City.

Four days earlier, the United States Supreme Court had announced two long-awaited decisions affecting same sex marriage – Hollingsworth v. Perry leaving intact the California Supreme Court’s decision to strike down Proposition 8, and United States v. Windsor,  declaring Section 3 of the Orwellian-titled Defense of Marriage Act [“DOMA”]  an unconstitutional denial of equal protection of more than one thousand federal laws affecting marital or spousal status.  Justice Kennedy’s majority opinion in Windsor did not mince words:  “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

After waving goodbye to the kids, we parents rapidly made a decision:  a beautiful day, a historic occasion—how could we miss it?!  As soon as we reached the BART platform, we were surrounded by riders in rainbow-hued tights, tutus, face paint, headgear, and jewelry.  As we rode from station to station, the train filled to bursting with riders of every age, race, and family circumstance – gaggles of glittery teenage girls, two-mom families with preschoolers, heterosexual couples with costumed babies, pierced bike riders, and elderly same-sex couples sporting rainbow beads. It felt like half the population of the East Bay was traveling to the Pride celebration.

Despite my understanding the legal and historical importance of the Windsor decision, I was still unprepared for its emotional impact on the crowd.  Parade participants weren’t just celebrating California’s legal right to marry – they were bearing witness to society’s validation of individual choices and family ties.  Float after float, sponsored by Google, Kaiser and other large mainstream institutions, rode down Market Street accompanied by waving employees who were embraced by the cheering crowd. “All love is equal!” chanted marchers bearing equality signs in all the colors of the rainbow.  Market Street was vibrating with a palpable sense of pride, joy, gratitude – and relief.

The founders of this country wisely named “the pursuit of happiness” as one of the inalienable rights of mankind. My experience at the Pride Parade last Sunday brought me a deeper appreciation for that foundational principle, and for the efforts of those who work every day to extend the blessing of this social contract to the hopes, dreams and pursuits of all our citizens.

Charlotte Fishman

About Charlotte Fishman

Charlotte Fishman is a San Francisco attorney with over 30 years of experience handling employment discrimination cases on the plaintiff side. In 2005 she launched Pick Up the Pace, dedicated to overcoming barriers to women’s advancement in the workplace through legal advocacy and public education. She has authored amicus curiae briefs in major cases before the United States and California Supreme Court and writes and speaks to a wide audience on cutting edge employment issues affecting women.

50 years after the Equal Pay Act, women still earn only 80 cents on the dollar 1

50 years after the Equal Pay Act, women still earn only 80 cents on the dollar

By Sharon Vinick

Although it has been 50 years since Congress passed the Equal Pay Act, according to the Institute for Women’s Policy Research, women still earn only 80 cents for every dollar earned by a man.  The anniversary is drawing attention.  In “The Startling Facts about the Gender Wage Gap,” lawyer and blogger Marjorie Wallace presents recent data regarding the disparities between the earnings of men and women.  In an effort to understand why the wage gap persists, Rebecca Pontikes explores the effect that unconscious bias has on women’s pay.   At the same time that we ponder the causes of the wage gap,  Noreen Farrell, Executive Director of Equal Rights Advocates, urges governors to take steps to close the gap in “50 Years, 50 Governors:  Are You Listening.”

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

Supreme Court makes proving retaliation harder for employees

Supreme Court makes proving retaliation harder for employees

By Sharon Vinick

The United States Supreme Court turned its back on decades of law when it decided on Monday that an employee cannot win a claim for retaliation unless he could prove that the employer’s decision to take action was driven by the employer’s intent to retaliate.  With this move, the Supreme Court made it more difficult for an employee to win a retaliation claim than to win a claim of discrimination or harassment, where an employee need only prove that a discriminatory motive was one of the reasons for the employer’s action.  The Court’s decision also ignores the realities of workplace decision-making, where decisions are rarely driven by single motives and where managers are trained to develop neutral explanations for their employment actions.

This heightened standard for proving a claim for retaliation was announced by the Court in the case of University of Texas Southwestern Medical Center v. NassarDr. Naiel Nassar, who brought the case, is a physician of Middle Eastern descent, who is a specialist in the treatment of HIV/AIDS.  While employed at the University Medical Center, Dr. Nassar complained that Dr. Levine, one of the physicians supervising him, was discriminating against him on account of his religion and national origin.  In an effort to continue his work, but to avoid being subjected to further acts of discrimination, Dr. Nassar sought and was verbally offered a position at an affiliated hospital.    However, a high-level hospital official voiced his opposition to the hiring, making it clear that he was shocked that Dr. Nassar had made allegations against Dr. Levine.  Subsequently, the hospital withdrew its offer to bring Dr. Nassar on board.

Ignoring a long line of cases holding that claims for discrimination and retaliation are often intertwined and that retaliation “is a type of discrimination,” the Supreme Court ruled that employees bringing a claim of retaliation should be held to a higher standard of proof that those bringing claims of discrimination. Thus, the Court held that to win a claim for retaliation, the employee must prove that an “adverse employment action” – in this case, the withdrawal of an offer of employment – was taken because of an intent to discriminate.  Justice Kennedy, author of the majority opinion, defended the Court’s decision by explaining that “claims of retaliation are being made with ever-increasing frequency” and that a higher standard of causation was necessary to eliminate the filing of “frivolous claims.”

In a sharply worded dissent, Justice Ginsburg, who spent her legal career defending civil rights and was a key player in the development of employment discrimination law, criticized the majority for failing to follow precedent, as well as failing to take into account the aims of the legislators who drafted and amended Title VII, the federal law prohibiting discrimination and retaliation.  As Justice Ginsburg correctly noted, the “Court appears to be driven by a zeal to reduce the number of retaliation claims filed against employers.”  While this goal may be lauded by the business community, it simply has no place in Supreme Court precedent, which is undoubtedly the reason that Justice Ginsburg concludes by urging Congress to overturn the Court’s ruling.

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

Marriage cases move nation towards equality

Marriage cases move nation towards equality

sctprotest

By Guest Blogger:  David Duchrow

The United States Supreme Court issued two landmark civil rights cases which, together, provide the strongest support to date for same-sex marriage.

These cases remind us that the civil rights movement does not travel a linear path.  Historically there have been notable steps forward and back, as well as many missteps.  The United States Supreme Court has issued decisions which, at times, have reflected popular opinion, and at other times it has held contrary to the will of “the people.”

Proponents of civil rights have pressed their cases based on compelling facts and moral imperatives, while those defending against progressive reform seem to utilize every procedural tool available to them (issues of standing, venue, and timeliness to name just a few) to defeat lawsuits against their clients.

This morning’s two marriage equality cases both follow and defy those historic trends.   In United States v. Windsor, the case involving the federal Defense of Marriage Act (“DOMA”), the Court issued a ruling aligned with what polls suggest is an overwhelming “will of the people,” which itself had dramatically changed over the course of the litigation.  Yet, in the case involving California’s Proposition 8, the high court avoided addressing the compelling trial court record that was carefully developed by those challenging Proposition 8.  Instead, the opinion in Hollingsworth v. Perry relies on a procedural maneuver to reinstate the trial court’s opinion invalidating Proposition 8.

In the DOMA case, Justice Kennedy wrote: “The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” Justice Kennedy’s writing tracks language used in an amicus brief signed by 56 pro-civil rights organizations (including the California Employment Lawyers Association, on whose behalf I was honored to sign).  That brief emphasized the stigma for same-sex unmarried couples and their children.  DOMA “undermines” same-sex marriages in visible ways and “tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.”  With the new decision, the federal government must now honor “dignity” states confer on same-sex couples if they choose to legalize gay marriage.

After the Court announced its DOMA decision, it issued its decision on Proposition 8.  California voters passed Proposition 8 to ban same-sex marriage in 2008, after 18,000 same-sex couples had already married under a state Supreme Court decision legalizing gay marriage.  A married lesbian couple with children, Kris Perry and Sandy Stier, sued the state of California when their six-month-old marriage was invalidated by the ballot initiative.  They argued that Proposition 8 discriminated against them and their union based only on their sexual orientation, and that the state had no rational reason for denying them the right to marry.  Two lower courts ruled in their favor, and then-Governor Schwarzenegger announced he would no longer defend Proposition 8 in court, leaving a coalition of Proposition 8 supporters led by a former state legislator to take up its defense.

Chief Justice Roberts joined with Justices Scalia, Ginsburg, Breyer and Kagan to rule that the initiative supporters did not have the standing to defend the ban in court.  The unusual coalition of traditionally liberal and conservative justices held that the Proposition 8 supporters could not prove they were directly injured by the lower court’s decision to overturn the ban and allow gay people to marry.

With the Proposition 8 decision, the Supreme Court refused to wade directly into the constitutional issues surrounding the California gay marriage case, side-stepping the pro-Proposition 8 argument on procedural grounds, meaning that a lower court’s ruling making same-sex marriage legal in California will stand and opening the door to marriage for gays and lesbians, without directly ruling on whether there is a constitutional right to same-sex marriage.

Thus, in DOMA the Supreme Court kept pace as public opinion shifted during the litigation, to the point where same-sex marriage is overwhelmingly supported now, even by those who opposed it initially when the litigation began.  And in the Proposition 8 case, procedure, not substance (alone) decided the outcome.  In any event, it is a proud, historic day for those who believe in equality and those who work to ensure civil rights for all.

 

Charlotte Fishman

About Charlotte Fishman

Charlotte Fishman is a San Francisco attorney with over 30 years of experience handling employment discrimination cases on the plaintiff side. In 2005 she launched Pick Up the Pace, dedicated to overcoming barriers to women’s advancement in the workplace through legal advocacy and public education. She has authored amicus curiae briefs in major cases before the United States and California Supreme Court and writes and speaks to a wide audience on cutting edge employment issues affecting women.

Supreme Court’s changing definition of supervisor: What does it mean to employees? 2

By Sharon Vinick

In 1998, the Supreme Court issued two key decisions regarding an employer’s liability for work place harassment — Burlington Industries , Inc. v. Ellerth, 524 U.S. 742 (1998) and Farragher v. Boca Raton, 524 U.S. 775 (1998) – which held that if a supervisor harasses an employee, the employer is strictly liable for the harm that is caused by the harassment.

Relying upon the ruling in these two cases, as well as the federal Equal Employment Opportunity Commission (“EEOC”) guidelines that define a “supervisor” as being anyone with authority to take tangible employment actions or to direct an employee’s daily work activities, Meatta Vance, who worked as a substitute server and a part-time catering assistant, sued her employer, Ball State University (BSU) for racial harassment.

Ms. Vance claimed that another BSU employee, Saundra Davis, had racially harassed her and created a hostile work environment, and that BSU was strictly liable for Ms. Davis’ acts, because Ms. Davis was her supervisor.  The lower courts  rejected Ms. Vance’s claim, finding that Ms. Davis was not Ms. Vance’s supervisor, because Ms. Davis did not have the authority to “hire, fire, demote, promote, transfer or discipline” Ms. Vance.

In Vance v. Ball State University, the Supreme Court rejected the EEOC guidelines regarding the definition of supervisor and the arguments offered by the Government’s attorneys.  Justice Alito, writing for the majority, held that for the purpose of holding an employer strictly liable, the term supervisor is limited to only those individuals who have been “empowered” by the employer to hire, fire, demote, promote, transfer of discipline.

As Justice Ginsberg points out in her dissenting opinion, this definition of “supervisor” is blind to the realities of the workplace.  Harassing employees who lack the authority to discharge or demote, are often “responsible for the day-to-day supervision of the workplace” and are authorized to make decisions which result in tangible employment actions against the employees whose work they are directing.  To hold that an employer is not strictly liable for the actions of these managers, is tantamount to giving job site bosses, and line managers, carte blanche to harass employees until such time as the employee actually files a complaint.

The implications of the Supreme Court’s decision in Vance will be wide-reaching.

First, many individuals with managerial authority will no longer be considered to be supervisors, leaving employees subjected to harassment by these individuals without a remedy unless they can prove that the employer knew about the harassment and failed to act.  For example, under the definition of supervisor adopted by the majority opinion, a law firm associate who supervises paralegals and gives out plum assignments, but cannot hire or fire the paralegals, is not a supervisor for purpose of imposing liability on the law firm for the associate’s acts of harassment.  Similarly, an employer is not strictly liable for the harassing conduct of a job-site boss, as long as the employer doesn’t invest the boss with the authority to hire and fire.

Second, employers are likely to strip responsibility for hiring, firing and promotion away from managers, in order to limit the company’s liability for acts of harassment by those managers.  This is likely to impact those employees who are most vulnerable to harassment, such as individuals who work at far-flung job sites where harassment can go uncheck and unnoticed (including individuals working in construction or agriculture),  and people who work in the food-industry where there are multiple shifts.

While the impact of the decision in Vance will not be known for some time, the decision is clearly a “win” for employers.  As Justice Ginsberg so eloquently stated, “the Court embraces a position that relieves scores of employers for responsibility for the behavior of the supervisors they employ.”  One can only hope that members of Congress read to the very end of Justice Ginsberg’s dissent, where she invites them to enact legislation to “correct the error to which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.”

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

In two 5-4 decisions, Supreme Court narrows Title VII protection against harassment and retaliation

By Charlotte Fishman

What Senator Warren has labeled “the Corporate Capture of the Federal Courts”  was on full display at the United  States Supreme Court today.  The Court issued Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar, two 5-4 pro-employer decisions authored by Justice Samuel Alito and Justice Anthony Kennedy, respectively.  Justice Ginsburg authored two impassioned dissents that she read from the bench.

To attorneys who represent victims of discrimination of harassment  and retaliation, these decisions illustrate a depressingly familiar scenario of judicial bias:    the majority is far more concerned with protecting employers from lawsuits than vindicating employees’ statutory right to be free from discrimination and retaliation.

In Nassar, Justice Kennedy’s words convey solicitude for the welfare of employers that is in sharp contrast to his disdainful view of employees:  “The fair and responsible allocation of resources in the judicial and litigation system” requires raising the standard for retaliation claims because “[i]t would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent.”

The majority’s lack of comparable concern for the “financial and reputational” cost of retaliatory harrassment to the employee is noteworthy, as is its unquestioning acceptance of the hypothetical danger rarely, if ever, encountered by employee-side practitioners:  “Consider…the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location.  To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination: then when the unrelated employment action comes, the employee could allege that this is retaliation.”

In Ball, Justice Alito’s opinion reveals the majority’s staggering ignorance of (or indifference to) the power of low level supervisors to use their employer-delegated authority to harass employees under their control.  The opinion limits employer’s vicarious liability for workplace harassment to the actions of supervisors who have the power to “hire, fire, demote, promote, transfer or discipline.”   In so ruling, the Court threw out EEOC Enforcement Guides in effect since 1999, and made it harder for employees to obtain redress for harassment by defining individuals who control day-to-day schedules and assignments as mere “co-workers.”

The tendency of the federal courts to favor corporate interests over that of individuals has become the subject of increasing public concern, and today’s decisions provide additional fuel for the argument that  we need greater experiential diversity on the federal bench.  Hopefully, Congress will accept Justice Ginsburg’s invitation to “correct this Court’s wayward interpretations of Title VII” and  restore the Title VII protections that are weakened by today’s cases.  But in the long run, what is needed to restore balance to our judicial system is the appointment of federal judges who are better attuned to the rights of individuals.

Charlotte Fishman

About Charlotte Fishman

Charlotte Fishman is a San Francisco attorney with over 30 years of experience handling employment discrimination cases on the plaintiff side. In 2005 she launched Pick Up the Pace, dedicated to overcoming barriers to women’s advancement in the workplace through legal advocacy and public education. She has authored amicus curiae briefs in major cases before the United States and California Supreme Court and writes and speaks to a wide audience on cutting edge employment issues affecting women.

%d bloggers like this: