While today's Supreme Court rulings on DOMA and Proposition 8 represented a huge step forward for the rights of LGBT Americans, this week's Supreme Court rulings haven't been good for racial and ethnic minorities or for women.
There’s been lots of coverage of the affirmative action and voting rights cases, but less on the Indian Child Welfare Act (ICWA) or the cases dealing with Title VII of the Civil Rights Act. And all of those went badly for those of us in the progressive movement.
There’s so much one could say about how five members of SCOTUS operate in ignorant or willful blindness of the realities of people’s lives and histories.
In the first case—in which a Cherokee father was denied custody of his biological daughter—how destruction of Native American culture was the express purpose of the state and federal governments for centuries, and ICWA (which was intended to keep Indian children from being taken from their homes)was a small but potent corrective measure.
In the second, which drastically limits the conditions under which a worker can sue for harassment, how those five men clearly never worked for someone who treated them badly—for any reason, let alone their race or sex.
But lawyers tend to be wordy, so let’s try for a little pithiness. On Monday, the highest court in our country said, in essence, “we don’t care what Congress said about harassment or retaliation.” In Vance v. Ball State University, the Court decided (remember that lack of reality?) that unless someone has the power to fire you (or promote you, though that seems irrelevant in the context of harassment), they cannot be considered your supervisor. Even if they are the person who tells you what to do every day.
Having worked at the bottom as well as the top of organizations over the years, I am here to tell you that is nonsense. It’s even more nonsensical when applied to cases like this, where Ms. Vance was allegedly verbally abused, called a racial epithet, and slapped by the person to whom she reported.
However, according to the SCOTUS majority, because the ultimate decision-maker (the person with the authority to fire her) did not act with racial bias against Ms. Vance, and because the person who did couldn’t take “tangible employment-related actions” against her, the University was not liable for the harassment that Ms. Vance endured. Justice Ginsburg noted as much in her eloquent dissent, calling on Congress to “restore the robust protections against workplace harassment the Court weakens today.” (Hold your breath much?)
As with most cases these days, what’s bad for racial minorities is bad for women. After all, women tend to occupy lower-level positions than men; they are less likely to be promoted; they earn less. And now, if someone they have to take direction from treats them badly because of their gender (or race), or creates a hostile work environment, employees are just plain out of luck unless the employer’s organizational chart puts the harasser in the position of hiring or firing. It’s a funny world out there. And SCOTUS doesn’t live in the same one I do, or that the women Legal Voice advocates for.
Lisa M. Stone is an attorney and the Executive Director of Legal Voice, a nonprofit women’s rights legal organization that pursues justice for all women and girls in the Northwest through ground-breaking litigation, legislative advocacy, and educational tools to help individuals understand their rights.