Lamberton Law Blog

Why do the five ultra-conservative members of the Supreme Court - Roberts, Scalia, Kennedy, Thomas and Alito - seek to undermine the United States' Civil Rights Laws at every opportunity? Because those laws conflict with their right wing ideologies. And once again, Congress is being called on to pass corrective legislation to restore the rights of ordinary American workers.

U.S. Senator Tom Harkin (D-IA), Chairman of the Senate Health, Education, Labor, and Pensions (HELP) Committee, joined Senator Tammy Baldwin (D-WI); Rep. George Miller (D-CA), senior Democrat on the House Education and Workforce Committee; and Rep. Rosa DeLauro (D-CT) to recently introduce legislation to give American workers the opportunity to succeed free of workplace harassment. The Fair Employment Protection Act corrects the error of the U.S. Supreme Court’s June 2013 decision in Vance v. Ball State University, which significantly weakened the ability of workplace harassment victims to seek legal recourse. The legislation restores workplace protections weakened by the Vance decision to ensure that Americans harassed on the job by supervisors and those with authority to direct people’s day-to-day work are treated fairly and receive the justice they deserve.

‎"Promoting fair and open workplaces is essential to ensuring that millions of hardworking Americans find good jobs so that our economy can continue to grow. Unfortunately, evidence shows that workplace harassment remains an issue for many Americans, particularly women. The Supreme Court recently exacerbated the problem when a slim majority decided to significantly weaken the protections for workers from harassment,” Harkin said. “The Fair Employment Protection Act would help restore the protections under the Civil Rights Act so that we once again have zero-tolerance for discrimination in the workplace. The bill will give a voice to every American who has experienced workplace harassment, and will help ensure that they get the justice they deserve. I am proud to join Senator Baldwin in introducing this bill and urge my colleagues to support this critical measure.”

“If you work hard and play by the rules you should have the opportunity to get ahead,” Baldwin said. “Unfortunately, workplace harassment remains an unacceptable reality that threatens the economic security of far too many people, particularly women, working to build a better future for themselves and their families. Harassment has no place in the workplace and should never impede economic success. I’m proud to introduce the Fair Employment Protection Act to restore important workplace protections, move this issue forward, and help provide American workers the level playing field they deserve.”

“Hard-working Americans should not have their livelihoods threatened by harassment in the workplace. To better protect workers, the Fair Employment Protection Act reverses a recent Supreme Court decision that made it harder for victims of unlawful and insidious harassment to hold their employers accountable,” Miller said. “By restoring strong legal protections, this bill will help ensure that employees who work hard and play by the rules receive the justice they deserve and thrive in their workplace.

“The Vance v. Ball State University decision reinforced the Roberts Court’s reputation as the most anti-worker Supreme Courts in our nation’s history,” DeLauro said. “Just as they did with Lilly Ledbetter’s case, a narrow majority struck at the heart of longstanding civil rights laws. I am proud to stand with my colleagues today in introducing legislation to overturn that decision.”

Workplace harassment on the basis of sex, race, national origin, religion, disability, age, and genetic information is currently prohibited under federal employment nondiscrimination law. Under the law, employers have a heightened legal obligation to protect against harassment by those with authority over other employees and as a result, employees enjoy real protections and employers are provided with compelling incentives to prevent and resolve this kind of harassment.

However, on June 24, 2013, the U.S. Supreme Court handed down a 5-4 decision in Vance v. Ball State University weakening these critical protections against harassment. The Court held that the heightened obligations on employers to prevent and remedy harassment apply only when the harasser is a supervisor with the power to hire, fire, or take other tangible employment actions against the victim employee. When harassment is committed by someone who has the power to control a workers’ daily work life, but not the power to hire or fire, a slim Court majority said that the employer has no heightened legal obligations.

The Fair Employment Protection Act corrects the error in the Vance decision and clarifies when employers should be held directly responsible for unlawful harassment. The legislation would include not just supervisors who can hire and fire, but also those whom the employer has put in charge of an employee’s daily work activities, thus able to reassign an employee whom they are harassing.

“Since the Supreme Court made it harder for survivors of harassment to have their day in court, it’s critical to pass the Fair Employment Protection Act, said Fatima Goss Graves, National Women’s Law Center Vice-President for Education and Employment. “This bill recognizes the reality of the American workplace, where many harassers don’t have the power to hire and fire but still have significant authority over millions of workers. Strong protections are especially important for workers in low-wage jobs who are particularly vulnerable to harassment and are often overseen by those with significant authority over their work lives other than hiring and firing power. The bill will restore the ability of survivors to effectively challenge their harassment.”

“The Vance decision made low wage workers more vulnerable than ever to harassment and intimidation from management. By redefining ‘supervisor’ to exclude the managers that interact with workers on a day-to-day basis, the Supreme Court has given corporations and middle management a free pass to skirt liability for abusing employees and lowered penalties for when they’re found guilty,” said Nancy Zirkin, executive vice president of The Leadership Conference on Civil and Human Rights. “Times have never been more precarious for the American worker and passing this bill is an important step toward ensuring greater security and peace of mind for our workforce.” On other notable occasions, Congress has needed to step in to correct unduly restrictive Court interpretations of federal workplace protections. For example, Congress enacted the Civil Rights Act of 1991 in response to a number of U.S. Supreme Court decisions that limited the rights of employees. Most recently, in 2009, Congress passed the Lily Ledbetter Fair Pay Act to address a Court decision restricting remedies for individuals bringing pay discrimination lawsuits.

The Fair Employment Protection Act has earned strong support in both houses of Congress. Senate cosponsors include: Senators Patrick Leahy (D-VT), Tom Harkin (D-IA), Barbara Mikulski (D-MD), Senator Patty Murray (D-WA), Dick Durbin (D-IL), Charles Schumer (D-NY), Robert Casey (D-PA), Sheldon Whitehouse (D-RI), Al Franken (D-MN), Richard Blumenthal (D-CT), Brian Schatz (D-HI) and Elizabeth Warren (D-MA). See what they are saying here. In the House, the legislation has 17 cosponsors. This bill is also supported by over 50 national organizations; see a list and what they are saying here. Additional background can be found here.