SCOUS Clarification of "Supervisor" Definition Does Not Reduce Compliance Program Requirements

Among other things, Title VII of the Civil Rights Act of 1964 [42 U.S.C.A. §§ 2000e et seq.] prohibits harassment of an employee
based on the employee’s race, color, religion, sex, or national origin and
imposes various obligations on employers to protect their employees against
various forms of harassment by non-employees (i.e., supervisors).  One
of the key, if not most important, factors in determining an employer’s liability
for workplace harassment is the status of the employee accused of engaging in
harassment and case law has drawn a sharp line between co-workers and
supervisors.  Specifically, if the harassing
employee is the victim’s co-worker, the employer is liable only if it was
negligent in controlling working conditions. 
However, different rules apply when the harasser falls within the
judicially accepted definition of a “supervisor” and in that situation the
standard will be determined based on whether or not a “tangible employment
action”—defined by the US Supreme Court as “a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant
change in benefits”[Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761,
118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)
]—is involved.  If the supervisor’s harassment culminates in
a tangible employment action the employer is strictly liable.  But if no tangible employment action is
taken, the employer may escape liability by establishing, as an affirmative
defense, that (1) the employer exercised reasonable care to prevent and correct
any harassing behavior and (2) that the plaintiff unreasonably failed to take
advantage of the preventive or corrective opportunities that the employer
provided. [See Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct.
2275, 141 L.Ed.2d 662 (1998)
; Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765,
118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)
]

The
federal Equal Employment Opportunity Commission (“EEOC”), when prosecuting
harassment cases under Title VII, long relied on the meaning of “supervisor” in
general usage and in other legal contexts, thus leading to an expanded view of
employees that might be considered to be supervisors.  However, in a recent decision handed down on
June 24, 2013 the Supreme Court mandated a narrower approach by holding that an
employee is a “supervisor” for purposes of vicarious liability under Title VII
only if he or she is empowered by the employer to take tangible employment
actions against the victim. [Vance v. Ball State
University et al. _ U.S. _ (June 24, 2013)]  The Court explained that its decision
regarding the definition of supervisor took into account the fact that many
modern organizations have abandoned a hierarchical management structure in
favor of giving employees overlapping authority with respect to work
assignments and that its concept of a supervisor could be readily applied and
that, in fact, an alleged harasser’s supervisor status could often be capable
of being discerned before (or soon after) litigation commences and would likely
be resolved as a matter of law before trial. 
As to the concerns of the EEOC that employers might attempt to insulate
themselves from liability for workplace harassment by empowering only a handful
of individuals to take tangible employment actions, the Court noted that
employees would not be unprotected against harassment by co-workers who possess
some authority to assign daily tasks and that in such cases a victim could
still prevail by showing that the employer was negligent in permitting the
harassment to occur and that the jury should be instructed that the nature and
degree of authority wielded by the harasser is an important factor in
determining negligence.

The actual impact of the Court’s ruling remains to be seen and no
employer can afford to be in a situation where a credible claim can be made
that it was negligent with respect to its efforts to ensure that its workplace
remains free of harassment.  Prudent
employees have already taken the following steps in developing their
anti-harassment programs: adoption of a
written sexual harassment policy and implementation of programs to ensure that
the policy is effectively communicated to all supervisors and employees; design and
implementation of a complaint procedure to encourage reporting and full and
discrete investigation of discrimination or harassment claims; posting of
information posters and preparation and dissemination of information sheets and
pamphlets on identifying, reporting and preventing sexual harassment; and offering both
supervisors and employees training and educational programs focusing on
prevention of sexual harassment and other forms of discrimination.

For further discussion of Title VII and other elements of Title
VII compliance programs see my Westlaw Next publication Business Transactions Solutions, Employment Law Compliance (§§ 100:1 et seq.). 

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