US blazes discrimination trail
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27 March 2014
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Three recent rulings by the US Supreme Court on discrimination and harassment could point the way forward for the UK. Satvinder Juss urges lawyers to take notice. Satvinder Juss is a barrister and former human rights fellow of Harvard Law School.The US Supreme Court has issued rulings in the most highly charged area of employment law - that of discrimination. The clarity of the court's rulings stand in contrast to its often tentative and piecemeal decisions in other areas.
These decisions show an unusual degree of consensus between the liberal and conservative wings on what constitutes discrimination in the workplace today. UK lawyers ignore these decisions at their peril.
In the first case (Bragdon vs Abbott), the court held that the one million Americans who are HIV positive are protected from discrimination at work, in medical care, housing and in the use of public services.
The Americans with Disabilities Act 1990 covered not just individuals who are incapacitated by a disease but also those whose lives are substantially impaired by their medical condition. The rulings will protect those with disabling diseases such as epilepsy, cancer, heart disease and diabetes.
Although Congress passed the law to safeguard those who were qualified to work, the right to equal treatment for people with disabilities will now cover hotels, restaurants, doctors' offices and other public businesses.
The case arose when a Maine woman, Sidney Abbott, diagnosed with HIV, was refused treatment by a dentist in his office, even though she did not have AIDS or any of its symptoms. The dentist said he would treat her only in a hospital that was two hours' journey away.
Justice Anthony Kennedy observed that the law defines disability as a "physical or mental impairment that substantially limits one or more of the major life activities". He declared that: "We hold [that HIV] is an impairment from the moment of infection" and that it has a "profound impact on almost every phase of the infected person's life". The law, he said, should be read generously: "The Act addresses substantial limitations on major life activities, not utter inabilities" and that "the definition [of a disability] is met if the difficulties are not insurmountable". The case surely demonstrates how far equality law can still be developed.
The second decision put the nation's employers on notice. It held that employers can be forced to pay damages to workers who are sexually harassed by their officials, even if they did not know of the harassment and the victim failed to complain.
Companies and public employers are thus automatically liable for a supervisor's sexual harassment - a ruling which looks set to swell the number of lawsuits in this fast-growing area. But the news is not all bad. Employers can defend themselves by showing that they have strict policies in place to tackle sexual harassment and that they respond quickly to complaints. They must also show that the victim failed to complain about the harassment. The burden of proof, however, lies with employers.
In the first of two cases (Faragher vs Boca Raton), the victim worked as a beach lifeguard in Florida. She alleged that she had been regularly subjected to lewd comments from two beach supervisors and had been grabbed and tackled in the sand. A lower court ruled that the supervisors were on a "frolic" of their own unrelated to their duties. But the Supreme Court held that the city must pay for this "misuse of supervisory authority".
Justice David Souter held that city officials had not "exercised reasonable care to prevent the supervisors' harassing conduct". In the second case (Burlington vs Ellerth), a Chicago woman's boss made repeated comments to a female colleague about sex, urging her to wear shorter skirts and advising her that she was not "loose enough".
A lower court judge threw out her claim because she did not suffer a "tangible consequence" such as demotion. But Justice Kennedy in the Supreme Court held that the only way that the company could defend itself was if it could prove that it "exercised reasonable care" to prevent harassment.
These decisions are likely to have momentous implications. In April, a judge in Arkansas threw out the lawsuit of Paula Jones against President Bill Clinton before trial, because she had not suffered a "tangible job consequence" for rebuffing Clinton's alleged advances when he was Governor of Arkansas.
Will the Supreme Court's far-sighted rulings now help revive a sexual harassment claim against a beleaguered president?