Supreme Court Adopts Narrow Definition of Supervisor for Harassment Law

Justice Alito writing for the court succinctly sets out today's holding in Vance v. Ball State (S.Ct. 6/24/13):

We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “significant change in employment status, such as hiring,firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, supra, at 761. We reject the nebulous definition of a “supervisor” advocated in the EEOC Guidance and substantially adopted by several courts of appeals.

For employers, at least in circuits that had not adopted the "nebulous" definition, this falls into the dodging a bullet category, and for those circuits which had adopted such a rule (Justice Alito specifically mentions the 2nd and 4th Circuits)  it is a very positive day.

Given the other opinions coming in the next few days, it is unlikely Vance v. Ball State will get much attention outside the labor and employment law bar. However, Justice Alito's opinion is one that is going to be worthy of substantial attention as it covers a number of important topics ranging from the importance of simplified jury instructions, the importance of summary judgment in certain contexts, the unique nature of the NLRA given its subject matter of regulating differences between labor and management not to mention the explication of Farragher and Ellerth which ultimately is the basis on which the case is decided.

Justice Ginsburg writes the dissent and once again looks to Congress as the way out:

The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.

That's the same song that is being sung about the Italian Colors Restaurant decision, and my view is the same. Unlikely to happen any time soon.

Supreme Court Will Decide Recess Board's Fate

It would have been more of a shock (and an even bigger problem) if it had not done so, but today the Supreme Court granted cert of the D.C. Circuit's Noel Canning decision. See, What Now for the NLRB? Recess Appointments Invalid  for the background.

One small step toward removing the Board from its current legal limbo.

In the long term, a potentially game changing decision on the powers of the Presidency versus the Senate.

Supreme Court Arbitration Jurisprudence - No Class Action If You Say So

Combining today's decision in American Express Co. v. Italian Colors Restaurant, (6.20.13) with its decision 10 days ago in Oxford Health Plans v. Sutter,  (S.Ct. 6.10.13) the Supreme Court's position now seems clear. If an employer wants to avoid class or collective actions, it can do so by having an arbitration agreement that precludes arbitration of claims on a class basis.  But to be sure that happens, you need to be explicit about it.

There is no doubt more nuance than that, and I  have no doubt that there will be new arguments why such bans will not work, and it may be that there will be some courts will go for it, but the Supreme Court position seems quite definitive.

The most logical way for it to be changed is legislative, and of course there has been legislation introduced for the past several Congresses that would ban requiring an arbitration agreement as a condition of employment. But at least for the foreseeable legislative future, that seems unlikely.

The net result of these decisions is a rather clunky way to solve a huge problem that is plaguing the employer community, the collective FLSA (and class claims under state equivalents) action.  The courts have been unwilling or unable to address that issue by establishing an appropriate standard for conditional certification.  And now, because arbitration appears it will be a solution, that means a large number of employers who have not implemented arbitration plans will be re-thinking the decision.

All of that will have impacts on the employment law world. It is unlikely that anyone can predict all of the ramifications with certainty. But that there will be a changed world now seems inevitable.

Just as a side note, what ever you may think of  the judicial view of Justice Kagan, who goes from writing for the Court in Sutter  to dissenting today, you have to enjoy her clear cut writing.

And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.

And a second side note, which surely can and will be amplified by those who really are students of the Supreme Court. particularly if I am right, some of Scalia's references to Justice Kagan's dissent, seem much more respectful than he sometimes is. When she was appointed, some of the commentary was that she might be able to build some personal bridges with members of the Court in the conservative wing and this makes me wonder if there is some, very small to be sure, signs that could be so.

After JFK's National Address

Medgar Evers, a field secretary for the NAACP was shot dead as he got out of his car in his drive way in Jackson, Mississippi.  It was just one of many incidents in the summer of 1963 that kept the pressure for the passage of the Civil Rights Act of 1964 moving forward. Medgar Evers Wikipedia entry.

A Doorway Stand and One Big Step Forward

On June 11, 1963, George Wallace made his famous "segregation forever" speech while standing in the door to block the integration of the University of Alabama. (Wonder what Coach Saban would think of that idea?).  After President Kennedy nationalized the Alabama National Guard, Wallace stepped aside.

Although that was certainly the iconic moment of the day, a much more important event occurred that evening when President Kennedy addressed the nation on the issue of civil rights. The NYT's editorial today talks about its significance, Kennedy’s Civil Rights Triumph.

For the first time, the President framed civil rights as a "moral issue."  More importantly for the development of employment law, President Kennedy promised that his administration would be introducing and supporting a comprehensive civil rights bill that would cover among other things employment.

Earlier in Congress, a civil rights bill had been introduced but it was fairly toothless. What was contemplated and what ultimately was introduced was a much more significant act.

The Equal Pay Act of 1963, The First Tentative Step

The first 87 Congresses of the United States did not really give much thought to the relationship between an employer and its employees.  When Congress had acted the focus was on regulating the power between organized labor (unions) and management. While certainly a major factor in the work world, those legislative actions only incidentally involved the basic relationship between the individual employee and their employer.

In 1938, Congress had established some work place minimums, but even then it was as much a desire to help pull the country out of the depression as regulating the workplace. And with the limited exceptions that led to the 1947 Portal to Portal Act, the FLSA was a relatively minor player up until at least the 1980's.

The genesis for the Equal Pay Act arose when women entered the work force in greater numbers during the war years. As early as 1945, "The Women's Equal Pay Act of 1945," was introduced. Subsequent versions were introduced regularly but never gained traction.

In 1962, like the years before when the legislation was introduced, it was not "equal pay for equal work," but "equal pay for comparable worth," a much broader concept that would be fought again later.

The comparable worth standard was strongly backed by the Kennedy administration and actually passed out of the House Committee. But on the floor,  Representative Katharine St. George, (R-NY) offered an amendment defining equal pay act claims as those "for equal work on jobs, the performance of which requires equal skills." The Senate concurred with the St. George amendment, but the bill failed to come out of conference and so it was not finally adopted until the next Congress.

This time, the bill was introduced with the St. George amendment, dealing with the specific (and much narrower) situation where employers would hire men and women for the same position, but relying on societal and market norms, pay women less. 

The bill was signed by President Kennedy, 50 years ago today.  The current version can be found here, The Equal Pay Act of 1963 (EPA).

One procedural aspect of the EPA was that it was drafted as an amendment to the FLSA, and in its early years contained the same white collar exemptions, a limitation not removed until 1972.

The EPA was a limited piece of legislation and was quickly overshadowed by the much broader Civil Rights Act of 1964, passed one year later.

But if nothing else it marked a major shift in Congress' willingness to enter the relationship between an employer and their employees.  My personal view is that employment law as a discipline, really begins with the passage of the CRA.

But if the EPA was not the baby that started employment law, it was at least the twinkle in Congress' collective eye.

50 Years Ago ...

In the summer of 1963, the summer between the 7th and 8th grade for me, my main concern was playing first base for Tapp's Pony League baseball team. (It was Tapp's the furniture store, not the funeral home, although I doubt that many in the small town new, or for that matter cared.) In other parts of the country, there were much more significant matters as the civil rights movement which had been building since the mid-1950's was beginning yet another significant and violent summer.

What I would do for a living was probably the furthest thing from my mind, but if I had been asked, one thing that I could not have answered is that I would be a lawyer specializing in employment law.  That job didn't yet exist.

I am certainly not the first person who has ended up spending a lifetime doing something that did not even exist when they were born. But I don't think when I exaggerate the role employment law has had not only on me, but on our whole society.

For the last 10, now almost 11 years I have been making these notes, I have focused on current developments in the world of work. But it seems like a good time to look backwards and reflect on just how far we have come in the last 50 years.

Although the civil rights movement is focused on the struggle and treatment of black Americans, the first tentative step toward this new discipline was focused on a different group and one particular problem. More about that tomorrow.