Six Years After the Lilly Ledbetter Fair Pay Act and Still More Work to Do

Six Years After the Lilly Ledbetter Fair Pay Act and Still More Work to Do

lillyledbetterjpg-822dc3fdc9542b67 By Sharon Vinick

Six years ago today, President Obama signed his first piece of legislation — the Lily Ledbetter Fair Pay Act — to extend the time period in which an employee could file a claim for pay discrimination.  The Act overruled the United States Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber, which Ledbetter said allowed her employer to pay her unfairly “long enough to make it legal.”

At the time of its passage, President Obama said that the passage of the Act would “send a clear message that making our economy work means making sure it works for everyone.”

Sadly, in the six years since the passage of the Act, the gender pay gap has – at best – barely budged.   Indeed, by some estimates, the wage gap has actually widened in the last few years.

If the new Congress is truly committed to the goal of pay equity, concrete steps must be taken.  First, Congress should pass the Paycheck Fairness Act, which will strengthen the Equal Pay Act and help secure equal pay for equal work.  Second, Congress must act to increase the minimum wage, as women make up two-thirds of the country’s minimum wage earners.   Third, Congress should enact a universal, government-paid preschool program, as 10% of the wage gap is attributable to time that women spend outside of the workforce.

While the Lily Ledbetter Fair Pay Act was a step in the right direction, Congress still has a lot of work to do to close the persisting wage gap.  Let’s hope by the Seventh Anniversary of the Act, we are closer to pay equity and an economy that truly works for everyone.

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

A New Year’s resolution for CEOs: Admit the mistake and take action to end bias

A New Year’s resolution for CEOs:  Admit the mistake and take action to end bias

By Sharon Vinick

Business Team

On February 4, 2014, Microsoft announced that Satya Nadella would become the new Chief Executive Officer of Microsoft.  Nadella had worked in Silicon Valley since 1992, and had been with Microsoft for 22 years when he was elevated to the position of CEO.  His first year compensation amounts to about $84 million.  Until October, Nadella’s tenure as Microsoft’s CEO was unremarkable.  But then came his remarks at the annual Grace Hopper Celebration of Women in Computing, the World’s largest gathering of women technologists.  The head of Microsoft chose this gathering of more than 8000 attendees, mostly women, to suggest that women were better off trusting “karma” than pushing for raises.  The incident raised the hackles of women inside and outside the technology world and immediately raised Nadella’s profile as well … but not in a good way.

The CEO had been invited to speak at a plenary session, which was open to all conference attendees.  In response to a question the best ways for women to advance in corporate America, Nadella said that “[i]t’s not really about asking for the raise, but knowing and having faith that the system will actually give you the right raises as you go along.”  Nadella went on to say that not asking for a raise was “good karma.”

Not too surprisingly, Nadella’s remarks immediately drew the ire of women, particularly as studies routinely show that women are paid less than men.  Indeed, some research shows that Nadella’s advice is exactly the opposite of what women need.  According to Linda Babcock, an economics professor at Carnegie Mellon University and leading researcher on women and pay negotiations, one of the reasons that women make less money is because they are less likely than their male counterparts to negotiate their compensation.

There is at least one silver lining in the story of this CEO blunder — it appears that Mr. Nadella may have learned something from the experience.  The first sign of the lesson learned came in the form of a tweet.  Unlike many CEOs, he did not try to explain away the ignorant remarks.  Instead, within hours of leaving the stage, Mr. Nadella tweeted:  “Was inarticulate re how women should ask for raise.  Our industry must close gender pay gap so a raise is not needed because of bias.”

Next came Nadella’s brief email to all Microsoft employees, in which he stated that his response to the question was “completely wrong.”  Yes, you read that right.  Within hours of making a foolish and clearly erroneous suggestion about how women should try to get ahead in the world of technology, Nadella sent an email saying he “answered the question completely wrong.”  He also went on to say “I believe that men and women should get equal pay for equal work.  And when it comes to career advice on getting a raise when you think it’s deserved . . . you should just ask.”

Then, a week after the incident, Nadella issued a companywide memo committing to expanding diversity within the company.  Significantly, the memo points repeatedly to the danger of “conscious and unconscious” bias in the workplace.  The concept of “unconscious” bias, also known as implicit or cognitive bias, refers to the way that people make decisions based on stereotypes and assumptions without intending to discriminate. In Nadella’s own words —

“My advice [to not ask for a raise] underestimated exclusion and bias — conscious and unconscious — that can hold people back. Any advice that advocates passivity in the face of bias is wrong. Leaders need to act and shape the culture to root out biases and create an environment where everyone can effectively advocate for themselves.”

Psychologists, academics and employment rights lawyers have been talking about this phenomenon for years.  The Nadella memo is a clear sign that their message is finally reaching the top echelons of corporations.  And that is good news.

Cynics will assume, probably correctly, that the quick apology was a public relations tactic.  And there is no question that the seemingly radical act of Nadella admitting that he had made a mistake virtually ended the criticism.  But there is reason to hope that the CEO for one of the world’s largest companies may have learned a deeper lesson than how to engage in damage control.  As we begin a new year, CEO’s across the country should take a page from Nadella’s playbook, accept that they may not yet fully understand the forces that have caused the gender pay gap, and resolve to “act and shape the culture to root out biases.”  Admitting error, saying that you were “completely wrong,” and taking action to change corporate culture is not only the right thing to do, it is also good business.

 

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

The Top Five Wins for Workers’ Rights in 2014

The Top Five Wins for Workers' Rights in 2014

By Sharon Vinick

2014

As the year comes to a close, it’s time for a “Top Five” list.  Interest in “Top Ten” or “Top Five” lists is so immense that psychologists have even coined the term the “Top Ten Effect,” to describe the “bump” that items on such a list receive in terms of sales.  A list of the top developments in employment law may not cause a run on any stores, but policy makers and working people should take note (drum roll please) as we now count down the list of five developments that will change the landscape of employee rights as we enter the new year.

  • No. 5:  New California Law Says Proof of Sexual Desire is Not Required to Win Sexual Harassment Claim

 The California Legislature deserves recognition for a new law that strengthens protection against sexual harassment on the job. For years, employers have tried to defend against sexual harassment claims by arguing that the harassment, although boorish, was not illegal because it was not based upon sexual desire.  This “defense” goes something like this — The boss who “joked” with his female subordinate about hopping over to a motel for the night wasn’t actually attracted to her, so that couldn’t be sexual harassment.  Or as the employer claimed in one infamous case, the ironworkers who hazed a new guy on the crew with threats of sexual violence couldn’t have perpetrated sexual harassment since they were all straight.  Earlier this year, the California legislature took away this excuse when it amended the Fair Employment and Housing Act to specifically provide that “sexually harassing conduct need not be motivated by sexual desire.”  These few short words will provide powerful protection for victims of workplace sexual harassment.  As important, the change reminds employers and the courts that sexual harassment is about abuse of power, not sex.

The California Supreme Court took aim at the hypocrisy of employers who hire and exploit undocumented workers. It has often been noted that low wage workers, regardless of their immigration status, are frequent victims of workplace violations. Undocumented workers, fearful that any complaint regarding a violation of these rights might result in their deportation, are a particularly vulnerable group, which should be supported by providing assistance in dealing with any kind of legal documentation – up to the living will management (learn more at Legal Zebra).  This year, in Salas v. Sierra Chemical Company, the California Supreme Court ruled that an employer who discriminates or retaliates against an undocumented worker can be held liable. While the case limits the damages available to these employees, it does provide that employers who violate the workplace rights of undocumented employees will be held accountable for their actions.

While the phrase “wage theft” has been around for years to describe employers who fail to pay overtime or other wages earned by their employees, a number of cases in 2014 have raised public awareness and built public outrage regarding the all-too-common practice of employers forcing employees to work without pay.  Studies suggest that employers are ripping their workers off to the tune of more than $50 billion annually.

The year began with a high profile wage-theft story from an unlikely quarter with the filing of a class action lawsuit against the Oakland Raiders by one of their cheerleaders, Oakland Raiderette Lacy T. The lawsuit sparked similar lawsuits at four other NFL franchises and, as important, a national conversation about wage theft.   In March, seven class action lawsuits were filed across the country against MacDonald’s on behalf of workers in the fast food franchise restaurants alleging its franchises did not pay employees for all hours worked and forced them to work through breaks. Challenges to wage theft kept rolling throughout the year.  In November, employees of Yank Sing, a high end San Francisco dim sum restaurant recovered a landmark settlement — $4 million in back pay and benefits for “blatant” wage theft in settlement of complaints before the California Labor Commissioner. These high profile lawsuits have increased public awareness of wage theft and their examples serve as a deterrent to future wage theft.

  • No. 2:  National Labor Relations Board Opens the Door for Retail Workers to Organize by Department

The federal administrative agency that oversees labor-management relations also took steps to level the playing field for workers in 2014.  In July, the NLRB issued a decision that makes it far easier for unions to get a foothold in large retailers, including Walmart.  In a case involving Macy’s department store, the NLRB ruled that the United Food and Commercial Workers could organize a subgroup of 41 cosmetic workers at a 150-employee store.  Before this change, unions faced huge challenges because they were required to win storewide votes.  As of 2013, only 4.6% of workers in the retail industry were members of unions, as reported by the Wall Street Journal.   That’s down from more than 6% in 2003.  The UFCW is campaigning to organize retail workers at stores like Bloomingdales, Macy’s, Target and, of course, Walmart.

  • No. 1:  Increases in Minimum Wage for Workers 

Without question, the movement that gained the most momentum this year for workers was the campaign to increase the minimum wage.    President Obama called upon Congress to raise the minimum wage from $7.25 an hour to $10.10 an hour, and signed an Executive Order to raise the minimum wage to $10.10 an hour for new federal contract workers.  Unfortunately, the gridlocked Congress did not act to increase the minimum wage that applies to all workers around the nation. However,  eleven states (California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Michigan, Minnesota, Rhode Island, Vermont, and West Virginia) and the District of Columbia did raise their minimum wage.

As of January 1, 2015, twenty-nine states and the District of Columbia will have minimum wages that exceed the paltry $7.25 per hour that workers earn under the federal minimum wage.  The highest minimum wage in the nation is in the District of Columbia, where the minimum wage is $9.50 an hour.  And, by January 1st, six other states (California, Connecticut, Massachusetts, Rhode Island, Vermont and Washington) will have legally mandated minimum wages of at least $9.00 an hour. While significantly more work remains to be done in this area, increases in the minimum wages are a meaningful development for millions of low-wage workers in this country.

So, as the year 2014 comes to a close, let’s toast these advancements for workers and rededicate ourselves to improving the working lives of all employees in the new year.

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

Let’s make 2014 the year in which all American workers are guaranteed access to paid sick leave

Let’s make 2014 the year in which all American workers are guaranteed access to paid sick leave

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By Sharon Vinick

Unlike other industrialized nations, the United States does not have a national paid sick leave policy.  According to a 2011 study by the Economic Policy Institute, 40% million Americans working in the private sector are employed in jobs that do not provide paid sick time.  And, the real cost of having employees go to work when they are sick is enormous.  The Centers for Disease Prevention and Control estimates that the annual flu season, alone, costs companies $10.5 billion in lost productivity and direct medical costs.  But, momentum seems to be building in favor of passing legislation that will provide paid sick leave to all employees.

In 2007, San Francisco became the first city in the country to require that all private companies – big and small – offer paid sick days to their employees.  At the time, business groups warned that providing paid sick leave would negatively impact local business.  As it turns out, these dire predictions were entirely wrong.  According to a 2011 study by the Institute for Women’s Policy Research, paid sick leave has benefitted employees without reducing employer profitability.

While it took a few years for other municipalities to follow San Francisco’s leave, by November 2013, six cities and one state had paid sick leave laws:  Connecticut, San Francisco, Washington, D.C., New York City, Jersey City (New Jersey) and Portland (Oregon).  Then, last summer, Senator Tom Harkin and Representation Rosa DeLauro introduced the “Healthy Families Act,” which would allow workers to accrue up to seven days of paid sick leave over the course of the year.  While the Act has not yet passed, each month, more states and municipalities seem to be jumping on the band wagon.  Earlier this month, the Newark City Council passed a paid sick leave ordinance, and similar legislation is under consideration in California and Washington.

The national discussion regarding paid sick leave is not limited to legislative bodies.  Earlier this month, Michael Miller of the Atlantic City Press, published an article regarding the move within New Jersey to provide paid sick leave.  And, on Monday, the New York Times published a story by Rachel Swarns which explained that cities that have adopted paid sick leave ordinances have not experienced an exodus of businesses.

But the biggest push towards providing paid sick leave to all Americans came just this week.  On Monday, during his State of the Union Address, President Obama said that “[a] mother deserves a day off to care for a sick child or sick parent without running into hardship – and you know what, a father does, too.”  This remark was widely considered to be support for national legislation requiring that private employers provide paid sick leave.  Then, two days later, actress Cynthia Nixon joined House minority leader Nancy Pelosi and a coalition of progressive groups in a “telephone town hall” in which they pushed for the passage of new legislation of paid sick leave.

Given that 74% of Americans believe that employers should be required to offer paid sick leave, it is high time that we pass legislation that guarantees all Americans access to paid sick leave.

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

U.S. Supreme Court defines the meaning of the phrase “changing clothes”

U.S. Supreme Court defines the meaning of the phrase “changing clothes”

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By Sharon Vinick

Earlier this week, U.S. Steel and employers across the nation rejoiced as the United States Supreme Court issued a decision regarding the meaning of the phrase “changing clothes” within the context of the Fair Labor Standards Act.  To understand why this ordinary phrase received such extraordinary attention requires some understanding of the Act itself, and the right of labor unions to negotiate over what type of work is compensable.

In 1938, when Congress enacted the Fair Labor Standards Act, which governs the minimum wages and maximum hours for individuals working in non-exempt positions, it failed to include definitions of key terms, such as “work” and “workweek.”  The Supreme Court addressed the meaning of these terms in the 1946 case of Anderson v. Mt. Clemens Pottery Co., concluding that the term “workweek” includes all time during which an employee is required to be on the employer’s premises and includes time spent engaged in “preliminary activities . . such as putting on aprons and overalls [and] removing shirts.”  The Court held that these activities – which came to be referred to as “donning and doffing” — are “work” for which employees should be compensated.

Just three years later, in 1949, Congress amended the FLSA in order to provide that the compensability of time spent donning and doffing clothing, as well as washing, was an appropriate subject for collective bargaining.  Thereafter, unions were free to negotiate with employers with respect to whether employees would be paid for “time spent in changing clothes or washing at the beginning and end of each workday.”  And, not too surprisingly, in the rough and tumble of union negotiations, many employees ended up working under contracts which provided that they did not get paid for changing clothes, even if the clothing was required and took significant time to get in and out of.

In Sandifer v. United States Steel Corporation, decided earlier this week, steelworkers asked to be paid for time that they spent putting on and taking off fifteen items of “personal protective gear,” including flame-retardant outerwear, gloves, steel tipped boots, hard hats, and snoods. (For the uninitiated, a “snood” is basically a hood that covers the neck and shoulder area, rather like a balaclava.) Attorneys for the steelworkers argued that these items were “protective gear” and not “clothes” within the meaning of the FLSA.  In contrast, the employer, US Steel, argued that these items were encompassed within the meaning of the phrase “changing clothes” and were appropriately covered under the union contract.

The Supreme Court relied on 1940s dictionary definitions of the words “changing” and “clothes” to decide the case, holding that “changing clothes” encompassed both changing from street clothes to work clothes and layering protective gear over work clothes.  Thus, the court concluded, if a collective bargaining agreement provided that employees would not be paid for “changing clothes,” they would not be entitled to pay for time spent donning and doffing protective gear.

The opinion has been widely hailed as a victory for employers, but its “gotcha” effect is likely to be short lived. The next time the parties sit down at the bargaining table it’s unlikely that the putting on and taking off of protective gear will fly under the radar.

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

Are workplace flexibility laws the wave of the future? 2

Are workplace flexibility laws the wave of the future?

By Sharon Vinick

Flexibility in scheduling  and other alternative work arrangements are crucial tools that enable working families to reconcile work and family responsibilities.  Many industrialized countries, including the United Kingdom and Australia, have enacted laws that guarantee employees the right to ask for flexible work schedules, without fear of retaliation.  These laws also require that employers seriously consider a request for flexible working arrangements, and provide a business justification for any request that is denied.

The Working Families Flexibility Act, first introduced in Congress by Representative Carolyn Maloney and the late Senator Edward Kennedy in 2007, would have  guaranteed American workers the same ability to ask for  work options without fear of retaliation.  Although she keeps trying to pass the legislation into law, the Congresswoman’s vision has yet to take hold.

While  Congress has yet to act,  developments at the state and local level suggest that the tide may be turning in the direction of workplace flexibility.

In June, Vermont passed legislation that gives employees the right to request a “flexible work arrangement” for any reason and requires the employer to consider such a request at least twice each calendar year.  The law, which will go into effect on January 1, 2014, defines a “flexible work arrangement” as “intermediate or long-term changes in the employee’s regular working arrangements, including changes in the number of days or hours worked, changes in the time the employee arrives at or departs from work, work from home, or job sharing.”  Once an employee submits a request, the employer must discuss it in good faith and grant the request if it is not inconsistent with business operations.

This month, the San Francisco Board of Supervisors passed the “Family Friendly Workplace Ordinance,” which allows employees to submit a request for an alternative work schedule to better fit their care-giving needs. The ordinance, which is likely to be approved by the mayor, requires that employers meet with employees to discuss requests for flexible work arrangements, and to either grant the request or provide a bona fide business reason for rejecting a request.

While neither the Vermont law nor the San Francisco ordinance  require businesses to grant an employee’s request for a flexible work arrangement, the mere fact that employers are required to consider the requests is a move in the right direction.

Congresswoman Maloney’s Working Families Flexibility Act – version 2013 – is again languishing in committee.  But as worker flexibility laws continue to gain a foothold on American soil, enabling businesses and workers to experience the anticipated benefits in productivity and morale, there is renewed hope for its eventual success.

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

50 years after the Equal Pay Act, women still earn only 80 cents on the dollar 1

50 years after the Equal Pay Act, women still earn only 80 cents on the dollar

By Sharon Vinick

Although it has been 50 years since Congress passed the Equal Pay Act, according to the Institute for Women’s Policy Research, women still earn only 80 cents for every dollar earned by a man.  The anniversary is drawing attention.  In “The Startling Facts about the Gender Wage Gap,” lawyer and blogger Marjorie Wallace presents recent data regarding the disparities between the earnings of men and women.  In an effort to understand why the wage gap persists, Rebecca Pontikes explores the effect that unconscious bias has on women’s pay.   At the same time that we ponder the causes of the wage gap,  Noreen Farrell, Executive Director of Equal Rights Advocates, urges governors to take steps to close the gap in “50 Years, 50 Governors:  Are You Listening.”

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

Supreme Court makes proving retaliation harder for employees

Supreme Court makes proving retaliation harder for employees

By Sharon Vinick

The United States Supreme Court turned its back on decades of law when it decided on Monday that an employee cannot win a claim for retaliation unless he could prove that the employer’s decision to take action was driven by the employer’s intent to retaliate.  With this move, the Supreme Court made it more difficult for an employee to win a retaliation claim than to win a claim of discrimination or harassment, where an employee need only prove that a discriminatory motive was one of the reasons for the employer’s action.  The Court’s decision also ignores the realities of workplace decision-making, where decisions are rarely driven by single motives and where managers are trained to develop neutral explanations for their employment actions.

This heightened standard for proving a claim for retaliation was announced by the Court in the case of University of Texas Southwestern Medical Center v. NassarDr. Naiel Nassar, who brought the case, is a physician of Middle Eastern descent, who is a specialist in the treatment of HIV/AIDS.  While employed at the University Medical Center, Dr. Nassar complained that Dr. Levine, one of the physicians supervising him, was discriminating against him on account of his religion and national origin.  In an effort to continue his work, but to avoid being subjected to further acts of discrimination, Dr. Nassar sought and was verbally offered a position at an affiliated hospital.    However, a high-level hospital official voiced his opposition to the hiring, making it clear that he was shocked that Dr. Nassar had made allegations against Dr. Levine.  Subsequently, the hospital withdrew its offer to bring Dr. Nassar on board.

Ignoring a long line of cases holding that claims for discrimination and retaliation are often intertwined and that retaliation “is a type of discrimination,” the Supreme Court ruled that employees bringing a claim of retaliation should be held to a higher standard of proof that those bringing claims of discrimination. Thus, the Court held that to win a claim for retaliation, the employee must prove that an “adverse employment action” – in this case, the withdrawal of an offer of employment – was taken because of an intent to discriminate.  Justice Kennedy, author of the majority opinion, defended the Court’s decision by explaining that “claims of retaliation are being made with ever-increasing frequency” and that a higher standard of causation was necessary to eliminate the filing of “frivolous claims.”

In a sharply worded dissent, Justice Ginsburg, who spent her legal career defending civil rights and was a key player in the development of employment discrimination law, criticized the majority for failing to follow precedent, as well as failing to take into account the aims of the legislators who drafted and amended Title VII, the federal law prohibiting discrimination and retaliation.  As Justice Ginsburg correctly noted, the “Court appears to be driven by a zeal to reduce the number of retaliation claims filed against employers.”  While this goal may be lauded by the business community, it simply has no place in Supreme Court precedent, which is undoubtedly the reason that Justice Ginsburg concludes by urging Congress to overturn the Court’s ruling.

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

Supreme Court’s changing definition of supervisor: What does it mean to employees? 2

By Sharon Vinick

In 1998, the Supreme Court issued two key decisions regarding an employer’s liability for work place harassment — Burlington Industries , Inc. v. Ellerth, 524 U.S. 742 (1998) and Farragher v. Boca Raton, 524 U.S. 775 (1998) – which held that if a supervisor harasses an employee, the employer is strictly liable for the harm that is caused by the harassment.

Relying upon the ruling in these two cases, as well as the federal Equal Employment Opportunity Commission (“EEOC”) guidelines that define a “supervisor” as being anyone with authority to take tangible employment actions or to direct an employee’s daily work activities, Meatta Vance, who worked as a substitute server and a part-time catering assistant, sued her employer, Ball State University (BSU) for racial harassment.

Ms. Vance claimed that another BSU employee, Saundra Davis, had racially harassed her and created a hostile work environment, and that BSU was strictly liable for Ms. Davis’ acts, because Ms. Davis was her supervisor.  The lower courts  rejected Ms. Vance’s claim, finding that Ms. Davis was not Ms. Vance’s supervisor, because Ms. Davis did not have the authority to “hire, fire, demote, promote, transfer or discipline” Ms. Vance.

In Vance v. Ball State University, the Supreme Court rejected the EEOC guidelines regarding the definition of supervisor and the arguments offered by the Government’s attorneys.  Justice Alito, writing for the majority, held that for the purpose of holding an employer strictly liable, the term supervisor is limited to only those individuals who have been “empowered” by the employer to hire, fire, demote, promote, transfer of discipline.

As Justice Ginsberg points out in her dissenting opinion, this definition of “supervisor” is blind to the realities of the workplace.  Harassing employees who lack the authority to discharge or demote, are often “responsible for the day-to-day supervision of the workplace” and are authorized to make decisions which result in tangible employment actions against the employees whose work they are directing.  To hold that an employer is not strictly liable for the actions of these managers, is tantamount to giving job site bosses, and line managers, carte blanche to harass employees until such time as the employee actually files a complaint.

The implications of the Supreme Court’s decision in Vance will be wide-reaching.

First, many individuals with managerial authority will no longer be considered to be supervisors, leaving employees subjected to harassment by these individuals without a remedy unless they can prove that the employer knew about the harassment and failed to act.  For example, under the definition of supervisor adopted by the majority opinion, a law firm associate who supervises paralegals and gives out plum assignments, but cannot hire or fire the paralegals, is not a supervisor for purpose of imposing liability on the law firm for the associate’s acts of harassment.  Similarly, an employer is not strictly liable for the harassing conduct of a job-site boss, as long as the employer doesn’t invest the boss with the authority to hire and fire.

Second, employers are likely to strip responsibility for hiring, firing and promotion away from managers, in order to limit the company’s liability for acts of harassment by those managers.  This is likely to impact those employees who are most vulnerable to harassment, such as individuals who work at far-flung job sites where harassment can go uncheck and unnoticed (including individuals working in construction or agriculture),  and people who work in the food-industry where there are multiple shifts.

While the impact of the decision in Vance will not be known for some time, the decision is clearly a “win” for employers.  As Justice Ginsberg so eloquently stated, “the Court embraces a position that relieves scores of employers for responsibility for the behavior of the supervisors they employ.”  One can only hope that members of Congress read to the very end of Justice Ginsberg’s dissent, where she invites them to enact legislation to “correct the error to which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.”

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

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