Who’s the Boss?

This week has been a heady one for any amateur legal nerd.  I dusted off my three-year-old undergrad knowledge on the topic and got really into the Supreme Court’s rulings.  My twitter feed was up in arms about the VRA ruling, and jubilant over the DOMA ruling.  I prepared to explain what had and hadn’t happened in Wednesday’s marriage equality rulings to all my friends.  Open the topic with me and we’ll converse, because I’ve been waiting to see how this case turns out ever since my junior year of college, which was when I took constitutional law and also when I started moving away from the blind homophobia I’d grown up with.  The short version is, ok, it’s a step in the right direction, but since the ruling appealed more to states’ rights than to human rights, it’s also a great jumping-off point for explaining just how much more needs to be done, both legally and culturally.  Speaking of which, I need to go find some activists to team up with around here because let’s be real, sitting on my ass writing a blog isn’t going to change shit.

Anyway.

There was a not-quite-so-earthshattering-or-headline-making case decided earlier this week which caught my attention because it touched on an area of law I acquainted myself with for my undergrad capstone research project: harassment law.  And I’ll tell you right up front, the news is not so great.  Not great for workers, anyway.

A quick legal guide for those who know even less than I do:  Legal decisions are not based solely on the letter of the law, they are also based on legal precedent.  Landmark cases often include the formulation of “tests” which are then applied to later court cases.

The particular case in question is Vance v. Ball State, and the question under consideration is whether or not the woman accused of harassment was Vance’s supervisor.  According to legal precedent, the extent of the business’s liability for harassment depends on whether or not the harasser is the victim’s supervisor.  The decision on this case (5-4, split along the typical political lines) has repercussions for every future harassment case.

To sum up the two ways the court could have ruled on the definition of supervisor, the ruling states: “Some courts…have held that an employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the victim…Other courts have substantially followed the more-open ended approach…which ties supervisor status to the ability to exercise significant direction over another’s daily work.”

Does the latter definition seem reasonable to you?  Too bad, because you’d be wrong.  In a ruling that was stunningly oblivious to normal power dynamics in the workplace, the Supreme Court decided that for legal purposes pertaining to harassment liability, “supervisor” only means someone with hiring/firing power or power to significantly affect one’s status as a worker (in the Court’s phrasing, “empowered to take tangible employment action”).  To be honest, this seems like a lazy way out.  It makes future rulings regarding employee-on-employee harassment really simple, but it does so at the expense of reality.  Don’t take my word for it, the court admits: “The [hiring/firing etc. power] framework is one under which supervisory status can usually be readily determined…The [alternative] approach….would make the determination of supervisor status depend on a highly case-specific evaluation of numerous factors.”

This doesn’t mean, of course, that future harassment cases will be dismissed out of hand if the harasser is not the victim’s supervisor.  But it does mean that the business can only be held accountable if the victim can prove that the business did not take sufficient measures to prevent the harassment.

Workplace harassment should never be taken lightly, no matter what the harasser’s relation to the victim.  Harassment cases almost always run into questions of the victim’s perception of events, since the harasser will often claim that the victim just took some harmless fun the wrong way.  The burden of belief should be skewed toward the victim.  And, if we must have this liability differential between supervisors and non-supervisors, the victim’s understanding of power dynamics should be taken into consideration.  By removing gray areas, the Supreme Court has opted for a letter-of-the-law approach which masks the complexity of real life situations, choosing to limit business’s liability for harassment and to ignore the voice of harassment victims.

I’m not even happy with the Court’s either/or approach.  Why couldn’t it be both?  Why not automatically assume business liability in cases where the harasser is empowered to take “tangible employment action” and then question power differentials in the remainder of the cases?  That would streamline the process to some extent and capture the full spectrum of power dynamics in a workplace.

Of course, this is my opinion.  If you want to read the Court’s opinion, I would encourage you to do so and to come to your own conclusion.

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