As the Supreme Court finished up its historic term in June, justices issued several rulings whose impact, many practicing employment lawyers say, will relieve organizations from the burden of rising workplace harassment and retaliation claims.
I'm a contrarian here; I don't think that will happen. The reason is that the Supreme Court's rulings won't address what is causing improper claims to rise in the first place or the costs that concern employers the most. Only employers can address these.
One ruling made it harder to win a retaliation suit establishing that under Title VII unlawful reprisal must be the motivating or "but for" cause of a challenged action not one of several other reasons. The other held that under Title VII individuals must have the actual authority to make tangible employment decisions [fire, demote, reduce pay] over specific individuals in order to be "supervisors" which carries special legal significance. This will affect how an employee establishes a claim under varying theories of hostile environment and discrimination liability. As a result, it's predicted that more claims will be dismissed without need of trial. That may be true, but in practice it misses a key business point.
During the past year, I've spoken with leaders in various enterprises and read surveys and statistics. My sense is that unless there are some really awful actions initiated by an executive or other prominent leader, or multiple claims involving a pattern of violations, employment litigation is not what keeps them up at night.
Their focus is on the day-to-day disruptions that arise from conduct that hampers productivity, diverts precious time to work through instances of claimed misbehavior, whether meritorious or not in the legal sense, and the overall distraction such events cause.
In its Nassar ruling, the court expressed concern about rising Equal Employment Opportunity Commission charges, particularly involving retaliation and the confusion that jurors and courts would continue to face if it did not clarify its standards. Based on statistics for fiscal year 2012, less than 4 percent of charges filed with the EEOC were found to have reasonable cause [e.g., an administrative conclusion that the law has been violated]. The other roughly 96 percent were withdrawn, settled or dismissed. Where adverse EEOC employer rulings were made, many were settled [a total of 1.4 percent or 37 percent of the cause findings]. A percentage of the unresolved claims became lawsuits; a much smaller percentage of these cases went to trial.
No doubt, the new standards are, for now, clearer, consistent and uniformly more restrictive across the United States. However, these decisions won't change daily patterns of workplace behavior which cause employees to lose focus, work less productively and ultimately file claims of discrimination which must be investigated and resolved one way or another.
To persons affected by conduct that seems unfair, improper, a violation of organizational policies and possibly illegal, burdens of proof and legal definitions surrounding a supervisor will not be their prime consideration. Protecting their jobs and being able to get their work done will be. Whether they understand the nuances of the new decisions, they will continue to complain in one form or another of improper conduct.
Still, sometime soon, employers will defeat lawsuits based on these new rulings. The court's decisions will get a lot of renewed legal attention heralding an era of tougher litigation standards favoring employers.
At the same time, there will be hundreds of employers continuing to deal with tens of thousands of situations that will sap their resources. These will involve actions that should never have occurred, that won't wind up in litigation or be dismissed if they do.
The ensuing processes will siphon off precious time and money all of which could have been preserved. Curbing improper, disruptive conduct of managers and employees alike, not just constructing legal defenses, will be the key to solving that pressing business problem.