Race, lets make this serious! It is nearly 2013.

[Dryer Vent]

I saw that. Someone posted the story of Facebook yesterday. That was a sad day.

[Ombudsman]

WASHINGTON -- The Supreme Court struck down a key section of a landmark voting rights law on Tuesday, saying Congress failed to take account of changing circumstances in the South when it decided which states would be subjected to additional scrutiny under the 1965 Voting Rights Act.

The court's 5-4 ruling in the case from Alabama frees states and municipalities with a history of racial discrimination from having to clear changes in voting procedures with the federal government -- at least for now. That restriction, part of the Voting Rights Act, has applied to nine states and parts of six others, mostly in the South.

Chief Justice John Roberts wrote the 5-4 decision in Shelby County v. Holder for the court's conservative majority. The four more liberal justices dissented...

...The law's defenders say Section 5 prevented Texas, Florida and South Carolina from enacting new voting restrictions in 2012. This year, they say, it stands as a bulwark against similar discrimination. In Beaumont, Texas, a school board election was canceled to prevent white candidates from running unopposed in three majority-black districts. In North Carolina, lawmakers have proposed new restrictions on voter identification, registration and early voting.

http://www.usatoday.com/story/news/poli ... e/2116491/

[O Really]

...there was also another one yesterday that makes it more difficult to pursue workplace discrimination claims. Maybe O Really can look it up and comment.

Executive Summary: On June 24, 2013, the United States Supreme Court issued an opinion favorable to employers, determining the term "supervisor" under Title VII should be defined narrowly. In Vance v. Ball State University, the Court limited employers' vicarious liability for workplace harassment by a "supervisor" to harassing conduct by persons with authority to take tangible employment actions (hire, fire, demote, promote, transfer, discipline) against the victim. For the first time defining "supervisor" for Title VII purposes, the Court defined it narrowly and favorably to employers. The Court split 5-4 along ideological lines with Justice Alito writing the majority opinion for the conservative wing of the Court. Justice Ginsburg was joined in her dissent by Justices Sotomayor, Breyer, and Kagan.

Background

Title VII of the Civil Rights Act of 1964 ("Title VII") makes it unlawful for an employer to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of the individual's race, color, religion, sex, or national origin. The Supreme Court has recognized that this language also prohibits the creation or perpetuation of a discriminatory or "hostile" work environment through harassment or other means.

In two leading decisions issued in 1998, the Supreme Court focused on the harasser's status in determining whether an employer will be held liable for alleged harassment. In Faragher v. City of Boca Raton, 524 U.S. 775, and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, the Court held that if the alleged harasser is the plaintiff's co-worker, the employer will be vicariously liable for the misconduct only if it was negligent in either discovering or remedying the offending behavior. If, however, the alleged harasser is a supervisor, the employer will be vicariously liable for the harassment, and can avoid liability only by proving that it: (1) exercised reasonable care to prevent and correct any harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities.

Before Vance, however, the Supreme Court had not specifically defined what constituted a "supervisor" under Title VII. Lower courts differed on qualifications one must possess to qualify as a supervisor for vicarious liability purposes. Some 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, following the EEOC's preference, adopted a more open-ended approach, which tied supervisor status to the ability to exercise "significant discretion" over another's daily work. The Supreme Court has now endorsed the more restrictive view.

The Facts of the Case

Vance, an African-American formerly employed by Ball State University, made several complaints of racial discrimination and retaliation over the course of her employment. At issue in this case was a complaint by Vance against Sandra Davis, a white female employee who worked as a catering specialist in Vance's department. Vance claimed Davis "gave her a hard time at work by glaring at her, slamming pots and pans around her, and intimidating her." Vance alleged she was "left alone in the kitchen with Davis, who smiled at her," "gave her weird looks," and "blocked" her on an elevator and "stood there with her cart smiling." Although the parties disputed the exact scope and nature of Davis' duties, they agreed Davis lacked the power to hire, fire, demote, promote, transfer, or discipline Vance.

The trial court ruled that Vance failed to show that Davis was a supervisor under the Seventh Circuit's narrow definition, which requires an individual to have the power to directly affect the terms and conditions of the plaintiff's employment. The Seventh Circuit affirmed, and the Supreme Court upheld the Seventh Circuit's decision.

Supervisor Defined Narrowly

The Supreme Court adopted the Seventh Circuit's narrow definition of supervisor. In doing so, it rejected Vance's argument that at least one of her co-workers should be considered a supervisor because the employee's job description included "leading, directing, and overseeing the work of substitute and part time employees," and Vance had served in a substitute or part-time capacity during the alleged harassment.

The Court's majority held that the Seventh Circuit's formulation for determining who is considered a supervisor was easily workable and could be applied without undue difficulty at both the summary judgment stage and at trial. The Court noted that under this standard, an employee's supervisory status could be readily determined, generally by written documentation. By contrast, the Court characterized the standard advocated for by the EEOC as "nebulous" and "abstract." The Court found this standard would be difficult to apply and would undoubtedly frustrate judges and confound jurors.

Because the alleged harasser was not empowered to take tangible employment actions against Vance, the Supreme Court affirmed the Seventh Circuit and dismissed Vance's appeal.

Employers' Bottom Line:

The Supreme Court has drawn a clear line for determining whether an employer may be held vicariously liable for its employees' alleged harassment of other employees. As the Court's majority notes, whether an employee is a supervisor for these purposes will often be easily determined simply by referring to that employee's job description. An employer can be held liable for the actions of an employee who has authority to hire, fire, demote, promote, transfer, or discipline another employee. Employers should, therefore, take time to audit job descriptions and the actual daily responsibilities of their employees to ensure the description accurately reflects the actual functions of each job. Failing to do so could leave an employer exposed to vicarious liability for actions of an employee who does not actually exert supervisory authority.

[O Really]

Your opinion?

It's a definition of "supervisor" not dissimilar to that used in Fair Labor Standards Act issues, such as exemption from overtime, and used in NLRB issues, such as eligibility or exemption from a bargaining unit. I don't have a problem with it.

Most - most - employers try pretty hard not to tolerate harassment, so it's getting harder to hold them directly responsible (as opposed to the actual "perp") in harassment claims. But I find it troubling that the decision was along supposed ideological lines. If the court's right wing thinks it's a good thing, I usually think it's probably not, but looking at it from the standpoint of who's investigated and defended harassment incidents, I don't think it's going to make much difference one way or the other in most cases.

[O Really]

The pundits I watched said that SCOTUS is chipping away at civil rights. Maybe, maybe, that's not too awful as we transition to a non-white majority US. It'll be ironic if some are eventually restored to protect whites.

Well, one could certainly point at some decisions that would support that view. And of course the Court is aided significantly in that effort by a rabid Congress. But not all decisions fit in the pattern. Some, like the "supervisor" decision will probably have minimal impact IRL. This is because the chances of success in getting a company held directly liable for what a "supervisor" does when the "supervisor's" role is murky are pretty low in the first place- as evidenced by the original case. It's generally better for everyone - plaintiff and defendant - if the lines are more sharply drawn.

And, depending on what the Court rules in DOMA and Prop 8, it might be hard to argue across the board erosion of rights by the Court.

[O Really]

True, I'm sure they were discussing traditional civil rights issues.....

Oh yeah, from that perspective the Court absolutely is eroding rights - or at least protections of rights.

[O Really]

Lost in the whoopdeoo of DOMA and Prop 8, here's one that fits the pattern of erosion of protection of rights. ...

Executive Summary: On June 24, 2013, the United States Supreme Court heightened the burden of proof for employees bringing retaliation claims under Title VII by holding that employees have to prove that the employer's desire to retaliate was the "but-for" cause for the employer's adverse employment action. In Univ. of Tex. Southwestern Med. Ctr. v. Nassar, the Court found that the "motivating factor" standard commonly applied to Title VII status-based discrimination claims is not the proper standard for Title VII retaliation claims. Instead, the Court held that plaintiffs must prove Title VII retaliation claims through the higher but-for causation standard commonly found under traditional tort principles. The Court highlighted the dramatic increase in retaliation claims over the years and predicted that the new but-for standard will help foreclose frivolous retaliation claims. The Court was sharply divided on the issue as demonstrated by its 5-4 vote. Justice Kennedy delivered the opinion of the Court, with Chief Justice Roberts and Justices Scalia, Thomas, and Alito joining in the opinion. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined.

Background

Title VII of the Civil Rights Act of 1964 (Title VII) makes it unlawful for an employer to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of the individual's race, color, religion, sex, or national origin. Title VII also includes an anti-retaliation provision, which makes it unlawful for employers to take an adverse employment action against an employee for having opposed, complained of, or sought remedies for unlawful workplace discrimination.

In its 1989 decision in Price Waterhouse v. Hopkins, 490 U.S. 228, the Supreme Court held that a plaintiff could prevail on a status-based Title VII discrimination claim if he or she could show that plaintiff's race, color, religion, sex, or national origin was a "motivating" or "substantial" factor in the employer's adverse action. In 1991, Congress passed the Civil Rights Act of 1991, which, in part, codified the Price Waterhouse motivating factor causation standard. Courts throughout the nation subsequently applied the same standard to Title VII retaliation claims, with some recent circuit divides.

In 2009, the Supreme Court visited the issue of causation in Gross v. FBL Financial Services, Inc., 557 U. S. 167. Gross, however, dealt with the Age Discrimination in Employment Act of 1967 ("ADEA"), not Title VII. In Gross, the Court found that the "because of . . . age" language found in the ADEA created a "but-for" standard for age discrimination claims. In other words, the Court held that an ADEA plaintiff was required to prove that age was the "but-for" cause of the employer's adverse action and declined to adopt the Price Waterhouse motivating factor standard. The Gross decision paved the way for the current Nassar ruling.

The Nassar Facts

Nassar, a physician of Middle Eastern descent, sued the University of Texas Southwestern Medical Center claiming constructive discharge based on alleged harassment by his supervisor, Dr. Levine. Nassar also claimed that Levine's supervisor, Dr. Fitz, retaliated against him after he sent a letter to Fitz and others stating he was resigning because of Levine's harassment. Prior to submitting the letter, Nassar had received a job offer from a University affiliate hospital. Fitz, angry that Nassar publicly humiliated Levine and wanting public exoneration for her, objected to the job offer, arguing that the affiliation agreement between the University and hospital required Nassar to be a University faculty member. The hospital subsequently withdrew its job offer to Nassar.

The jury found for Nassar on both claims. On appeal, the Court of Appeals for the Fifth Circuit found that Nassar did not submit sufficient evidence to establish his constructive discharge count and, therefore, vacated that portion of the judgment. However, the Fifth Circuit affirmed the jury's retaliation finding and held that Nassar could prove retaliation through the motivating factor standard. The University appealed to the Supreme Court.

The Supreme Court's Opinion

The Court closely examined the textual language of Title VII in distinguishing the burden plaintiffs must meet to establish a status-based discrimination claim versus a retaliation claim. The Court primarily compared the language found under the anti-retaliation provision of Title VII to the language found under the ADEA and found no "meaningful textual difference" between the relevant text in the two statutes. Therefore, the Court found that like Gross, "Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action." Under this standard, an employer is not liable for retaliation if it would have taken the same action for other, non-discriminatory reasons. The Court rejected Nassar's primary argument that retaliation essentially is another form of unlawful employment practice under Title VII no different from race or national origin discrimination and, therefore, the same motivating factor causation standard should apply. The Court also highlighted the ever-increasing frequency of retaliation claims and the importance of the but-for causation standard to the "fair and responsible allocation of resources in the judicial and litigation systems." Additionally, the Court discredited the relevant EEOC Compliance Manual, which had adopted the motivating factor standard for Title VII retaliation claims.

Employers' Bottom Line:

The Nassar decision is a significant win for employers:

This new standard likely will make it easier for employers to dispose of frivolous retaliation claims through summary judgment.
The decision should create more certainty for employers evaluating whether they are likely to prevail when filing dispositive motions.
The implications of Nassar could be far reaching. Employers can expect wider application of the Nassar decision outside of the Title VII arena.
Employers should continue to carefully document their employment actions as such evidence will be essential in defeating plaintiffs' attempts to prove retaliation.

[neoplacebo]

Today is the day in 1957 that president Eisenhower signed the first civil rights legislation to pass Congress since Reconstruction. Just think, in only 56 years the Republican party has plummeted this far; and appears to still be in freefall. Hell, I bet they'd kick Eisenhower out if he tried to join them today.

[Troll Patrol]

Today is the day in 1957 that president Eisenhower signed the first civil rights legislation to pass Congress since Reconstruction. Just think, in only 56 years the Republican party has plummeted this far; and appears to still be in freefall. Hell, I bet they'd kick Eisenhower out if he tried to join them today.

Ike would have gone all Normandy on their racist wingnut tails by now.

When there is nothing else to do a lib can always play the race card.

[neoplacebo]

Gee, I must have gotten the ire (sort of in absentia) by the rabid America hater and general loon. Do you think he'll ever go back to Libya and join the rest of the sales managers?

[bannination]

http://conservativepoliticalforum.com/p ... s-by-race/

[O Really]

Why not "play the race card?" "There are so many of them in the deck. If a real deck of cards had a "race card" it wouldn't be just one card. It would be at least the whole suit of Spades. Opps, there I go, playing the "race card" again, I guess.

[bannination]

They're forgetting to also adjust for age, unequal law enforcement and economic status, thus proving their ignorance of honest and accurate statistical analysis. We've seen these same figures here and they're common on other forums. Good sheep. To them, the first relevant factor is ignored while the second is 'unAmerican race baiting' and the third is "Marxist". Never mind how clearly racist their selective attribution of cause is, straight white old men like Troll Patrol/Supsalemgr will still whine that he and other straight white old men are victims of lefties playing the race card.

Exactly. They don't even understand why they're racists. They don't have the big picture. It's not that they are necessarily evil or anything, they're just ignorant.

Must be some of those "low-info" voters.

[bannination]

Research confirms what we knew from the majority of cons we've debated here and what many others already knew.

TEA PARTIERS REACT WITH FURY TO WORLD THEY CAN'T CONTROL

It's not just the TP. Though not all racist and wingnutty the GOP, too, is "white, mainly male, Protestant, native born, straight...The only whiff of good news is that tea party supporters tend to be older than average. Their cohort is diminishing and will be replaced by a younger voting bloc whose members don't hew to their antediluvian views." Time to recall:

An Open Letter to the White Right, On the Occasion of Your Recent, Successful Temper Tantrum (11/2010)

Tick, tock.

I've never considered the tea party "ultra conservative", ultra nutty maybe. Their own website http://www.teaparty.org/, links to infowars. When a party makes rules that destroy democracy, they really want to dictate, not negotiate.

You really gotta wonder about their sanity. I think there is a lot of truth in that article.

[O Really]

My GUESS - trying to make sense out of insanity - is that Hooters has a policy against "unnatural" hair color, meaning that since nobody can grow blue hair, you can't dye it blue. We don't know what they employee's hair actually looked like, but my GUESS is that the manager didn't like it and used the policy inappropriately to dump her. But hey - if employers didn't do stupid things, I'd have to get a real job.

[Cannonpointer]

Someone please tell me that general colonel poseur is still posting. I need an arch-enemy. Or at least a stooge to mock.

[Cannonpointer]

I am referring to the fraud who started this thread - the one who clearly doesn't get that Colbert is PARODY.

[rstrong]

If it helps, I'm a conservative republican.

[Cannonpointer]

That helps greatly, thank you. I cannot hate you, because you are clearly too stupid. Only a great moron would self-identify as both a conservative AND a radical right wing progressive - two contradictory descriptions.

So, when you say republican, the first thing that comes to mind is the larry craig, glory hole type republican - the same type that cheered for torture. Are you one of those?

[rstrong]

Actually, being Canadian, when I say republican the first thing that comes to mind is that I think we should drop the monarchy. (Hint: If you oppose having a king or queen, then you too are a republican.)

Being a conservative I think that we should keep our partially socialized Canadian health insurance system. It means that since a decade of same-sex marriage hasn't caused any problems, I support it. Heck, it means that I supported to begin with, since it meant less of the government dictating who could and couldn't get married.

It means that in American terms I identify best with a fiscal conservative like Bill Clinton, rather than drunken sailor spenders like Reagan, Bush I and Bush II. It means that in American terms I support today's Democrats, rather than that other party dominated by radicals who want to radically reinterpret and revise the Constitution and American history and turn America into a totalitarian torture state theocracy. It means that on the torture issue I would imprison everyone from the torturers on up the command chain to Bush II, Dick Cheney, Condoleezza Rice and John Yoo.

I am the very model of a conservative republican.