Provided by: Judge Ruth B. Kraft       


This week, in a closely awaited, 5-4 decision, the United States Supreme Court held that an employee is considered a supervisor only if the employer gave him the authority to take “tangible employment actions” against the complaining employee.  Pursuant to Title VII of the Civil Rights Act, an employer can be held liable for harassment against a worker by a non-supervisory employee only if it was negligent in controlling work conditions.  However, if a supervisor harasses a subordinate and the harassment results in a tangible adverse employment action, the employer is held strictly liable.  If the harassment does not result in a tangible adverse employment action, the employer can avoid liability by establishing that it exercised reasonable care to prevent and correct the harassing conduct and that the plaintiff unreasonably failed to avail himself of the preventative or corrective opportunities.
In the case, Vance v. Ball State University, a black banquet worker alleged that a white “catering specialist” had glared at her, slammed pots and pans around her and blocked her on an elevator.  The lower courts had held that the catering specialist, who allegedly had created a hostile work environment, was not a supervisor because she did not have the authority to hire, fire, demote, promote, transfer or discipline the plaintiff.  Thus, the university could not be held liable for her acts, because it had not been negligent with respect to her conduct. 
Significantly, in a majority decision authorized by Associate Justice Samuel Alito, the Supreme Court held that the “ability to direct another employee’s tasks is simply not sufficient” to establish that person as a supervisor for the purposes of Title VII liability.  What defines supervisor is the ability to act as an agent of the employer “to make economic decisions affecting other employees under his or her control”.  In so doing, the Supreme Court rejected the EEOC’s definition of supervisor, the ambiguous “level of authority of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment.”
The Vance decision does not legal potential plaintiffs without the protection of the law but, instead, imposes a different burden of proof, namely, that of establishing that the employer failed to exercise reasonable care so as to prevent and correct the harassing conduct. The dissent, by Associate Justice Ruth Bader Ginsburg, assailed the majority decision as “blind to the realities of the workplace.”
In another case, University of Texas Southwestern Medical Center v. Nassar, the high court narrowed the legal standard for plaintiffs alleging adverse employment actions in retaliation for complaints about employment discrimination.  Now, a plaintiff must prove not simply that retaliation was a motivating factor in a negative action, such as demotion or discharge, but the determinative factor.The case involved a physician of Middle Eastern descent who made a hostile work environment claim based on treatment by his supervisor due to his religion and ethnic heritage.  Additionally, he claimed retaliation in that he was not given as good a job offer as anticipated, because he had complained of discrimination.  Noting that the number of retaliation cases filed with the EEOC has skyrocketed in the past 15 years, Associate Justice Kennedy, writing for the majority, stated that retaliation cases should have a tougher standard of proof that conventional employment discrimination cases under the Civil Rights Act. Not unsurprisingly, Justice Ginsburg blasted this and said that the decisions in Vance and Nassar should give rise to Congressional action to overturn the rulings.
Notwithstanding two major victories for the business community, it goes without saying that employers must exercise continued vigilance over potential inappropriate workplace conduct which could violate the Civil Rights Act, Fair Labor Standards Act, and local laws.  Do you have concerns about the conduct of your employees?  Have you trained them in anti-harassment and anti-discrimination principles and insured that your workplace is free from retaliatory actions? 


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