Vance and Nassar Decisions Threaten Workers' Rights

Vance and Nassar Decisions Threaten Workers' Rights
July 2, 2013

Last week marked the 75th anniversary of the Fair Labor Standards Act (FLSA), extolled by FDR as perhaps “the most far-reaching, farsighted program for the benefit of workers ever adopted here or in any other country.”  But rather than celebrating FLSA—the bedrock of modern employment law—workers’ rights advocates are reeling from two negative Supreme Court decisions that threaten to nullify some of the law’s key protections. 

Both opinions, published this week amidst a flurry of landmark cases, will make it harder to ensure FDR’s aim of “rudimentary standards of decency” in the workplace. 

In University of Southern Texas Southwestern Medical Center v. Nassar, the Court heightened the standard for workers to make out a valid claim under Title VII’s retaliation provision.  Prior to Nassar, lower courts asked for a showing that retaliation was one motivating factor in an adverse employment action in order for the worker to recover. 

In Nassar, the Court tightened the standard to that of but-for causation, requiring workers to show that the employer would not have taken the action absent a retaliatory intent. As Justice Ginsberg noted in her dissent, such a rule invites fanciful thought experiments about what employers would have done had circumstances been different.  By imposing an opaque standard that permits post-hoc rationalization, the court thwarted efforts to hold employers liable for retaliating against workers brave enough to assert their rights.

Dealing another blow to vulnerable workers, the Court in Vance v. Ball State University held that employers can only be vicariously liable for harassment where the perpetrator holds a supervisory position, newly defined as someone who can take “tangible employment actions” against the victim. 

This novel conception of supervisor wrongly excludes those who direct subordinates’ daily work and evaluate their performance. Ginsburg’s rousing dissent calls the majority “out of touch with the realities of the workplace” and decries their opinion as “disserv[ing] the objective of Title VII to prevent discrimination from infecting the nation’s workplaces.”

As guardians of FLSA’s rights, LAS-ELC is alarmed by the certain injustice that will follow Vance and Nassar   LAS-ELC will redouble its efforts to protect workers from employer abuse, but we hope that Congress heeds Ginsburg’s call to overturn last week’s decisions.