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 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.
