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Will the Supreme Court (Re)Define Employer Liability for Harassment By Supervisors?

This case presents an excellent opportunity to settle this important issue.

June 28, 2012
Related Topics: Top Stories - Frontpage, Performance Management, Wrongful Discharge, Staffing and the Law, Discrimination and EEOC Compliance
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An employer's liability for unlawful harassment depends, in part, on whether the alleged perpetrator of the harassment is a supervisor or a co-worker. Employers are strictly liable for unlawful harassment committed by a supervisor, but only liable for harassment committed by a non-supervisory co-worker if the company was negligent in discovering or remedying the harassment.

In Vance v. Ball St. Univ. (7th Cir. 6/3/11), the court concluded that for the purpose of imposing strict liability for harassment, "supervisor" means "direct supervisor." That is, if the alleged harasser is a supervisor in title, but lacks the power to directly affect the terms and conditions of the plaintiff's employment, strict liability cannot attach, and the court must analyze the employer's liability under a negligence standard.

On June 25, the U.S. Supreme Court agreed to hear the appeal of this case. The court will decide the following two-part issue:

Whether the "supervisor" liability rule … (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim's daily work, or (ii) is limited to those harassers who have the power to "hire, fire, demote, promote, transfer, or discipline" their victim.

This case has the potential to be significant for employers. As the plaintiff argued in support of the Supreme Court hearing the case:

These issues are no small matter. During the twelve-month period ending September 30, 2010, 14,543 employment discrimination cases were filed in United States courts—the third-largest category of civil cases…. And in 2010 alone, the EEOC received more than 30,000 harassment charges…. Employers agree that this issue is "an important and recurring issue of federal law." In the modern workforce, where many acts of discrimination are committed by intermediate-level individuals in a large hierarchical organization such as Ball State University, resolution of this issue will undoubtedly add clarity to a great many employment discrimination disputes.

This case presents an excellent opportunity to settle this important issue.

Indeed, the federal appellate courts are split on this issue. The 1st, 3rd, 6th (which includes Ohio), and 8th agree with the 7th Circuit's opinion in Vance v. Ball St. Univ., while the 2nd, 4th, and 9th Circuits, in addition to the EEOC, conclude that a supervisor is a supervisor regardless of the degree of oversight or control over the alleged victim of the harassment.

Hopefully, this case will settle this dispute and provide much needed clarity on the scope of an employer's liability for unlawful harassment. This supposedly business-friendly Court has proven itself to be an ally of employees in recent cases. Will this trend continue? Much more on this case in the coming months, including an attempt to handicap the outcome after oral argument.

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