By Bryce Covert
On Tuesday, the Supreme Court handed down decisions in two little-watched cases: Vance v. Ball State University and University of Texas Southwestern Center v. Nassar. Both cases erected new hurdles for those who experience workplace harassment or discrimination.
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?