Category: Sex Discrimination

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Labor and Employment Sex Discrimination

I Mean… Really? Women Still Have to Sue to Be Paid Equally

I Mean… Really? Women Still Have to Sue to Be Paid EquallyEven the most naïve of my friends and colleagues will admit that there’s wage gap in this country. It’s not necessarily $0.77 on every dollar – sometimes it’s more; sometimes it’s less; sometimes it’s in the boardroom; sometimes it’s on the soccer pitch – but it exists. The news is filled with supporters and detractors, and with employers who plan on studying, or examining, or analyzing, or reviewing (or any variety of “ing” verbs) the issue to conclude about why it exists, but rarely do you read or hear a story about resolving the issue in a real or concrete way.

Sure, the last administration’s policies and executive orders paved the way for more transparency, but in the end, too many loopholes allow companies to continue their practices of paying men more. (Brutal. Truth.) To combat these practices, women must use the one avenue that has proven results: litigation under the Equal Pay Act.

Look, I get it – many women executives, especially those whose income plays a significant role in supporting their families, are afraid of risking their jobs, or of being labeled a “trouble maker,” “greedy,” “sue happy,” yadda yadda yadda and so on. Worse, they fear it will further cripple their chances to advance in their chosen company or industry. But litigation works. Litigation, especially when used to correct injustice, will ultimately force change in corporate behavior. When dealing with laws like the Equal Pay Act, without litigation, there is no enforcement. Without enforcement… no change.

What is the Equal Pay Act, and what does it do?

The Equal Pay Act is a federal law that requires employers to pay male and female employees the same wage for the same job. It applies not only to wages, but to “perks” that may come along with a position: benefits, retirement plans, commissions, etc. The law is designed to protect employees from sex/gender discrimination in regards to their pay.

Another important element of the Equal Pay Act is that it does not require an employee to prove the discrimination was intentional – merely that it occurred. In regards to lawsuits, the EPA also allows plaintiffs to collect double damages and have their attorneys’ fees paid.

Exceptions in the Equal Pay Act

The EPA does allow for certain exceptions when it comes to pay. Generally:

  1. A seniority system;
  2. A merit system;
  • A system which measures earnings by quantity or quality of production; or
  1. A differential based on any other factor other than sex: provided that an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.

Please don’t read this list and assume your situation includes an exception; it never hurts to seek counsel on the nuances.

Tackling challenging EPA claims

The final exception, “A differential based on any other factor other than sex,” can be especially challenging. One common defense we see used over and over again is that male employees are more likely to negotiate for higher pay or larger bonuses, so the company feels it did not violate the law. Arguments like these, however, shift the burden from the employer who pays men and women differently, to the victim of that inequality. Again, an excuse like that is to be challenged vigorously.

We have the resources, the skills and the experience you want on your side when your rights have been violated. To learn more about our services, or to schedule a consultation with Jonathan Bobbitt or another member of our team, please call 888.996.9731 or fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville for y

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Sex Discrimination

Who is Running Chattanooga (or Tennessee, for that matter)?

Who is Running Chattanooga (or Tennessee, for that matter)?A curious thing is happening to our news outlets. Over the course of the last few weeks, we’ve noticed more and more stories that focus on accusations of sexual harassment, on gender discrimination, and on sexism and feminism (and the conflation between the two).

It’s not that these stories aren’t important or newsworthy; they clearly are. What is curious to us is how some of them garner far more discussion (Emma Watson’s Vanity Fair profile, for example) than others, especially at the local level. In 2016, The Chattanooga Times Free Press reported:

  • 92% of Chattanooga’s biggest employers are run by male CEOs
  • 90% of the Directors who sit on the boards of publicly traded companies are male
  • 84% of Hamilton County’s local elected officials are men

So, is this sexism? Is it sex discrimination? Is it both?

To find the answer, we need to look at more than just numbers; we have to look at the ideology behind them. Sexism is defined as “prejudice, stereotyping, or discrimination, typically against women, on the basis of sex.” Sex discrimination “involves treating someone (an applicant or employee) unfavorably because of that person’s sex.” If women applicants were denied these positions simply because they are women, that could be considered sex discrimination. But if women did not apply for these positions at all because they live in a culture that tells them men are leaders, then that is sexism – even if they do not realize it’s happening.

For example: according to the Press, “women are more apt to work and lead in the nonprofit sector than at major businesses. Among the eight women in Chattanooga who head local employers with more than 100 employees, half of them are the top boss at a local nonprofit or government agency.” As one interviewee told the paper, “nonprofits allow women to lead with their heart and passion and, along with their business skills, to achieve what they regard as success.”

There is so much to unpack here. But what is striking to me is that there is this odd and underlying assumption that women must somehow want to lead with their hearts and their passion first, and rely on their “business skills” second, the implication being that men would not.

This is sexism. The idea that women have more heart or more passion, that perhaps women lack the aptitude to lead organically in a capitalistic society, or that they would be influenced by those factors more than a man might, is a sexist assumption. Sexism – this idea that males and females have fundamentally different natures, which can be applied to the business world – is systemic, and these types of belief extend far outside Chattanooga. It is the basis for wage disparity, for the types of jobs women are more likely to apply for (and obtain), and for the roles men and women play in society. Even a stereotype that “seems” positive – women are more nurturing, women are more passionate, etc. – is still dangerous, because these labels set men and women up to fail. (Remember this commercial by Pantene?)

The Gilbert Firm offers comprehensive counsel in the areas of discrimination and sexism in the workplace. Our Tennessee gender discrimination attorneys have built a reputation for handling complex cases with skill and finesse. To schedule a consultation with Jonathan Bobbitt, Justin Gilbert, or another member of our firm, please call 888.996.9731, or fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville.

 

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Sex Discrimination

Yellow Card or Red? U.S. Women’s National Soccer Team Files a Wage Discrimination Action against the U.S. Soccer Federation

Yellow Card or Red? U.S. Women’s National Soccer Team Files a Wage Discrimination Action against the U.S. Soccer FederationAs reported by ESPN, some of soccer’s biggest names have filed an EEOC Charge of Discrimination, on behalf of the entire United States Women’s National Soccer Team (USWNT), alleging wage-discrimination against the U.S. Soccer Federation. (You can follow the official Twitter account of the team, and see reactions to the story at #USWNT.)

The charge states that in 2015, women’s soccer generated $20 million more revenue than the U.S. men’s soccer team. Yet the women’s players are paid less than the men are – almost four (4) times less. ESPN cites the numbers in the EEOC filing as such:

“The women would earn $99,000 each if they won 20 friendlies, the minimum number they are required to play in a year. But, the men would likely earn $263,320 each for the same feat, and would get $100,000 even if they lost all 20 games. Additionally, the women get paid nothing for playing more than 20 games, while the men get between $5,000 and $17,625 for each game played beyond 20.”

In short, the USWNST may have to play more games than they are contractually obligated to play for no money, whereas the men’s team’s players – who already make more per game – are compensated for games played outside of the contract. Further, the USWNST was paid $2 million for winning the 2015 World Cup (and securing that coveted 3rd Star), whereas the men’s team was paid $9 million for their approximately 15th place effort in the 2014 World Cup. As Hope Solo said in a statement released by the players and their lawyer, “The numbers speak for themselves. We are the best in the world, have three World Cup championships, four Olympic championships, and the U.S.M.N.T. get paid more to just show up than we get paid to win major championships.” It doesn’t take much digging to find the shocking differential treatment between the USWNST and their male counterparts. And it leaks beyond pay into playing conditions.

This complaint comes at an interesting time, as the Olympic Games begin on August 5, 2016 in Rio. Right now, the union is in dispute with U.S. Soccer regarding those games. U.S. Soccer claims that the Collective Bargaining Agreement requires the women to play through December 31; the union claims that contract can be terminated at any time. A federal judge is expected to rule on the impact of the CBA around June. Imagine the impact it would have should U.S. Soccer force the USWNST to strike and not compete in the upcoming Olympics.

As father of a little female soccer player who, by the way, has followed this team to Canada and beyond, I applaud the women for standing their ground and not accepting the status quo or the common pushback of “hey, why are you complaining, you get paid to play soccer and sign autographs… be grateful.” These women don’t strike me as ungrateful; quite the contrary. The country will be watching to see how this plays out. Most importantly, A LOT of young women and girls will be watching to see how the country responds and their heroes react.

The truth is, women all across the U.S. and here in Tennessee have something in common with Hope Solo and Alex Morgan… they aren’t being paid equal to their male counterparts despite performing the same duties. The Gilbert Firm protects the rights of Tennessee victims of discrimination. If your employer is in violation of the law, or has withheld or denied you pay for discriminatory reasons, we can help. To work with Jonathan Bobbitt or Justin Gilbert, please contact us. We maintain offices in Nashville, Chattanooga, Memphis, and Jackson for your convenience.

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Sex Discrimination

UT Settles Gender Discrimination Case for Seven Figures

UT Settles Gender Discrimination Case for Seven FiguresWhen the University of Tennessee decided to merge its women’s and men’s athletics departments back in 2012, many people lauded the decision to stop segregating sports teams. Merging the departments showed solidarity, right? Instead, three employees of the department found themselves the victims of gender discrimination, claiming that they received less pay for equal work because of their association with the women’s sports teams. After they raised concerns about the situation with the University in 2010, one employee was fired and two were demoted.

Jenny Moshak, former associate director of sports medicine, and strength coaches Collin Schlosser and Heather Mason filed a lawsuit in 2012 alleging gender discrimination and retaliation that resulted in their termination and demotion. In their suit, they claimed that the University “has created a testosterone wall effectively prohibiting women from earning equal pay and further denying plaintiffs the opportunity to advance their careers by working in men’s athletics at the University of Tennessee.”

The lawsuit was settled for seven figures, though the settlement agreement states that it is not an admission of liability on behalf of the school.

The complexities of gender discrimination

Our firm followed this case closely for a number of reasons, not the least of which is that we cheer for the Volunteers. I myself am a UT alum and served on the Board of the UT Alumni Association. One of the often overlooked elements of this particular gender discrimination case is that Collin Schlosser, who filed the suit with Moshak and Mason, is male. We say “interesting” because most people associate gender discrimination as one sex or gender “against” the other. In the UT case, Schlosser claimed that he, too, was a victim of gender discrimination because of his association with the women’s athletic teams – that because he worked with female athletes, he was denied equal opportunity to fair pay, and then subject to wrongful termination in retaliation for his complaints.

What this example shows us so clearly is that gender discrimination is not always as obvious as “he” vs. “she.” What is obvious is how common the issue is, and how hard we need to fight to ensure that all people are treated equally under the law.

The Gilbert Firm advocates on behalf of Tennessee employees whose rights have been violated. If you believe you were the victim of discrimination or harassment, or that you were wrongfully terminated as a retaliatory measure for your actions or beliefs, you can trust us to provide comprehensive and aggressive counsel. Please contact us to reserve a consultation time at one of our multiple office locations in Nashville, Chattanooga, Memphis, and Jackson.

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Age Discrimination (ADEA) Sex Discrimination

Sexual Harassment and Gender Discrimination Happen More Frequently Than You Might Think

Sexual Harassment and Gender Discrimination Happen More Frequently Than You Might ThinkIn early December of 2015 Fortune.com published an article about one of the witnesses in the case of Ellen Pao v. Kleiner Perkins Caufield & Byers LLC and DOES 1-20 (a gender discrimination case out of San Francisco), a woman named Trae Vassallo. What Ms. Vassallo discovered, after she delivered testimony about her own experiences with sexual harassment, was that an “overwhelming number” of women wanted to discuss their personal experiences with harassment and discrimination – enough to lead her to co-author a study of 200 women in the technology field about their experiences. Her findings show:

  • Women who have experienced an unwanted sexual advance at work: 60%
  • Women who reported that experience: 39%
  • Women who were not given career-advancing opportunities: 66%
  • Women who have witnessed sexist behavior at offsite events and conferences: 90%
  • Women who have witnessed or experienced gender bias: 88%
  • Women who have been questioned about their personal lives during an interview (marriage, children): 75%

What these statistics can tell us

Most people have what they think are good definitions of “gender discrimination” and “sexual harassment” in their heads. What studies have shown over the years, which is no surprise, is that men and women often have vastly different ideas about what those definition are. In fact, those definitions will vary widely between members of the same sex. What everyone seems to agree on is that unwanted sexual advances – touching, catcalling, repeatedly asking for dates, making sexual comments or discussing sexual content – is sexual harassment. Telling inappropriate jokes and commenting on a woman’s attire can also be forms of harassment when they are unwanted, while purposely passing over a more qualified woman for a promotion in favor of a male employee instead is a form of gender discrimination.

Ultimately, numbers like these prove that women are faced with far more challenges in the workplace than what is generally reported. There are rules and laws in place to ensure that everyone feels safe at work and are otherwise evaluated on an equal playing ground. There is simply no reason for a female endure this treatment and fail to seek assistance. In many situations, these matters can be addressed privately and confidentially. With all of the protections afforded to employers, it is critically important that these situations be handled properly. If you believe you may have been a victim of sexual harassment or gender discrimination, or are unsure how to proceed, we invite you to contact Jonathan Bobbitt or Justin Gilbert at The Gilbert Firm to reserve a consultation with a skilled employee rights attorney in our Nashville, Chattanooga, Memphis, or Jackson office locations.

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Sex Discrimination Title VII

Workplace Accommodations for Pregnancy: The Supreme Court and Young v. UPS

This is the second post on recent Supreme Court cases.  This one is of special interest to me for two reasons.  First, I attended the oral argument at the Supreme Court in December.  Second, I’ve been asked to speak on this topic at the Judicial Conference for the U.S. Court of Appeals for the Sixth Circuit.  My presentation is in Detroit on Thursday of this week, but the following is a sneak peak.

Congress passed the Pregnancy Discrimination Act, or PDA, in 1978. The Act amended the definition of “on the basis of sex” in Title VII. 42 U.S.C. § 2000e(k). The Act has two parts. The first part explicitly defines “on the basis of sex” to include “pregnancy, childbirth, or related medical conditions.” The second part provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” It also provides that a seniority or merit system provided for in other parts of Title VII cannot excuse this different treatment.

While the Supreme Court and other federal courts have examined the meaning of “pregnancy, childbirth, or related medical conditions” many times, the second, equal treatment provision had seldom been addressed before the recent decision in Young v. UPS. In 2014, the Young v. UPS case went before the Supreme Court, asking the Court to interpret this second part of the PDA. The Court’s March 25, 2015, decision does just that.

Peggy Young, the plaintiff in Young v. UPS, worked as a part-time delivery driver for UPS. As a driver, she was responsible for loading and unloading her van and making deliveries. In 2006, following two unsuccessful rounds of in vitro fertilization, Ms. Young requested leave to try a third round. When she became pregnant, she asked to extend her leave. During her leave, she indicated to her supervisor that she would be unable to lift more than 20 pounds for the first twenty weeks of her pregnancy or more than 10 pounds thereafter. Upon Ms. Young’s request for extended leave, UPS informed her that she would not be permitted to work as long as she had the 20-pound restriction, despite Ms. Young’s asserts that she rarely had to lift packages weighing more than 20 pounds and that coworkers had agreed to help her when necessary. Eventually, UPS informed Ms. Young that she would not be able to return to work until after she was no longer pregnant. She returned to work after giving birth.

Ms. Young’s suit revolves around three UPS policies. First, UPS defined the essential functions of driver as including the ability to lift up to 70 pounds and assist in lifting up to 150 pounds. Second, under a collective bargaining agreement, UPS must provide light duty to employees who are injured on the job or suffer from permanent impairments cognizable under the ADA; this provision specifically does not include pregnant workers. Third, another collective bargaining agreement provision required that UPS give an “inside job,” which is not considered light duty, to drivers who lost their certification due to a failed medical exam, lost or suspended driver’s license, or involvement in a car accident. Ms. Young asserts that, because UPS’s policies, which allow light duty for on-the-job injury and disability but not for pregnancy, violate the PDA by failing to treat pregnant women the same “as other persons not so affected but similar in their ability or inability to work.”

The district court ruled in favor of UPS on summary judgment; on appeal, the Fourth Circuit affirmed. The Fourth Circuit found that UPS’s policy of limiting accommodations to workers injured on the job, disabled, or without certification was “pregnancy-blind.” Turning specifically to the second clause of the PDA, the court then concluded that the potentially broad language was limited by the specific definition in the first clause. The court determined that the PDA worked only to expand the definition of “sex” to include pregnancy, not to allow special treatment for pregnant workers above that accorded to other workers who may also suffer disqualified illness or injury. Thus, the court held, the second section did not create a separate cause of action. In doing so, the Fourth Circuit explicitly declined to follow Sixth Circuit precedent in Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996), where the Sixth Circuit held that showing a pregnant plaintiff was treated differently than a nonpregnant employee similar in their ability or inability to work established a prima facie case of pregnancy discrimination.

            The Supreme Court specifically addressed the following question: The PDA requires giving the same accommodations to an employee with a pregnancy-related work limitation as it would give that employee if her work limitation stemmed from a different cause but had a similar effect on her inability to work. Suppose the employer would not give that pregnant employee the same accommodations as another employee, but the employer’s reason for the difference in treatment is that the pregnant worker falls within a facially neutral category (for example, individuals with off-the-job injuries.) What is a court then to do?

Young argued that the second clause of the Act should be interpreted broadly and literally. She argued that as long as an employer accommodates only a subset of workers with disabling conditions, pregnant workers who are similar in the ability to work must receive the same treatment, even if still other nonpregnant workers do not receive accommodations.

UPS argued that the second clause does no more than define sex discrimination to include pregnancy discrimination.

Ultimately the Court did not accept either interpretation. It found that Young’s approach would grant pregnant workers a “most-favored-nation” status, which could not have been Congress’ intent in passing the PDA. Adopting UPS’ interpretation of the second clause would render the first clause superfluous, which the Court chose to avoid. The Court also declined to follow the EEOC’s July 2014 guidelines which provided an example of disparate treatment of pregnant workers that mirrored the facts in Young’s case exactly. Specifically because these EEOC guidelines were released after the Court granted certiorari in this case and took a position about which the previous guidelines were silent, the Court did not rely on them.

Rather, the Court held that a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the PDA’s second clause may make out a prima facie case by showing, as in McDonnell Douglas that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.” The employer may then seek to justify its refusal to accommodate the plaintiff by relying on legitimate, non-discriminatory reasons for denying her accommodation. That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates.

If the employer offers an apparently legitimate, non-discriminatory reason for its actions, the plaintiff may in turn show that the employer’s proffered reasons are in fact pretextual. A plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers and that the employer’s legitimate nondiscriminatory reasons are not sufficiently strong to justify the burden. What is a significant burden? The Court says the plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.

The Court found a genuine material dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s. Therefore it vacated the judgment of the Fourth Circuit and remanded the case for decision based on the new interpretation.

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Sex Discrimination Title VII Uncategorized

Michael’s Take on the Hobby Lobby Case

With all the drama that comes from handing down a major decision on the last day of the term, the US Supreme Court issued the much awaited Hobby Lobby decision. Those on the right hailed it as a victory for individual liberty. Those on the left bemoaned the impact that it would have on the healthcare system. In my opinion, the truth lies somewhere in the middle.

The issue was whether a closely held corporation enjoys some or all of the religious protections of the First Amendment. Proponents of the Affordable Care Act argued that companies are not persons. Therefore, they don’t have individual rights. The Supreme Court disagreed. Writing for the majority, Justice Alito said “a corporation is simply a form of organization used by human beings to achieve desired ends.” Therefore, under the First Amendment, closely held corporations cannot be required to provide coverage for contraceptives in their health care plan if that violates their sincerely held religious beliefs.

Sounds simple, right? The implications, however, can be far-reaching. What if a company says it violates their religious beliefs to employ African-Americans? What if the company says it violates their religious beliefs to employ women? What if the company says it is against their religious belief to employ Christians? Taken to an extreme, the reasoning of the Hobby Lobby opinion could produce scary results. At least for now, the decision certainly does not go this far.  It specifically acknowleges that it is a narrow holding.

It does raise a number of questions that those who celebrate the decision might want to consider. There are those with sincerely held religious beliefs who contend it is immoral to have blood transfusions. Does that mean that life-saving blood transfusions should be unavailable to employees of companies who are owned by individuals holding such beliefs? There are religions that believe it is immoral to have virtually any medical care. What happens to their employees?

These are questions that will have to wait for another day. They will surely, at some point, make their way through the courts.

Categories
FLSA Overtime/Wage & Hour Sex Discrimination

Lilly Ledbetter’s Thoughts on the Paycheck Fairness Act

Lilly Ledbetter’s name was thrust into the public spotlight when the United States Supreme Court decided to hear her case.  To the amazement of many, she lost.  The Supreme Court held that an employer can effectively “run out the clock” on an Equal Pay Act violation.  Ms. Ledbetter was making less money than her male co-workers.  She didn’t know it.  By the time she found out, the Supreme Court said it was too late to sue.

 This led Congress to pass legislation to change the law.  The act, appropriately named the Lilly Ledbetter Act, was the first bill signed into law by President Obama.

More potential reforms are on the horizon.  The Paycheck Fairness Act would be an amendment to the Equal Pay Act and the Fair Labor Standards Act.  The law would give more teeth to the Equal Pay Act.  More about that in a later blog.  The law would also permit employees to share wage information.  This would allow them to be informed about the pay their co-workers receive.  In turn, this would make it easier to for a victim of discrimination to learn that they she was not being paid legally.

In a recent Washington Post op-ed, Ms. Ledbetter shared her thoughts on the Paycheck Fairness Act.  It’s worth a read.  Here’s the link.

http://www.washingtonpost.com/opinions/lilly-ledbetter-says-the-president-can-do-more-for-equal-pay-sign-an-executive-order/2014/01/17/3eae5e62-7e0d-11e3-93c1-0e888170b723_story.html?hpid=z3

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Sex Discrimination Title VII

The Employment Non-Discrimination Act (ENDA) Passes the Senate

Today, the United States Senate passed the Employment Non-Discrimination Act (ENDA). This piece of legislation had laid dormant for some time. It passed the United States House of Representatives in 2007, but was never passed by the Senate. Now that the current version of the bill has passed the Senate, it must go for approval in the House.

ENDA prohibits discrimination based on sexual orientation and sexual identity. In other words, it extends the employment discrimination prohibition of Title VII, which prohibits discrimination based on race, sex, religion or national origin, to those workers who are gay, lesbian, or transgender.

The bill passed the Senate rather easily, including receiving a number of Republican votes. Republicans Susan Collins and Mark Kirk were co-sponsors of the legislation. Republicans Lisa Murkowski and Orin Hatch were also early supporters. Senator Hatch’s support is especially noteworthy, as he is generally not viewed as a more progressive member of the Republican Party.  The final vote tally was 64-32, with ten Republicans voting “yes.”

ENDA now goes to the House of Representatives, where it faces a much more uncertain future. Speaker Boehner has indicated that he opposes the bill and likely would not bring it up for a vote. However, the possibility that it could be attached to another piece of legislation still exists.

This is worth keeping our eyes on. ENDA would potentially alter the landscape of employment discrimination law. Now that it has passed the Senate, we must wait on the House. That could be a long wait.

Categories
Sex Discrimination Sexual Harassment Title VII

Vance v. Ball State Part 3: What does it mean to prevent sexual harassment?

Here’s my final installment of my thoughts on the recent Supreme Court case addressing an employer’s liability for supervisor sexual harassment.  In a case of co-worker sexual harassment, the question is largely one of negligence.  The Supreme Court had some comments about establishing an employer’s negligence.  They said:

In any event, the dissent is wrong in claiming that our holding would preclude employer liability in other cases with facts similar to these. Assuming that a harasser is not a supervisor, a plaintiff could still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant. Thus, it is not true, as the dissent asserts, that our holding “relieves scores of employers of responsibility” for the behavior of workers they employ.

Wow!  There’s some good stuff in there for employee rights advocates.  First, “preventative measures” has been thought of as part of the employer’s affirmative defense in a supervisor harassment case.  The Vance Court says that an employer is liable – not only if they are negligent in addressing the harassment – but also if they are negligent in preventing it.  Second, they provide a very useful list of things that an employer should do to prevent harassment:

–          Monitor the workplace for sexual harassment

–          Respond to complaints

–          Provide a system of registering sexual harassment complaints

–          Encourage (rather than discourage) complaints of sexual harassment

The first and third items on this list are noteworthy.  What if a plaintiff shows that an employer did not have a protocol in place to monitor the workplace for sexual harassment?  Is the employer liable?  Must the employer have a formal registry of all sexual harassment complaints it receives?  The Supreme Court suggests that the answer to these questions is . . . yep.

This blurs the line between co-worker harassment and supervisor harassment.  Proving that an employer did not adequately monitor the workplace for sexual harassment might now be enough to prove negligence and lack of preventative measures.  This would allow the plaintiff to prevail regardless of whether the offender is a co-worker or supervisor.  While the Vance opinion is generally thought to limit an employer’s exposure in sexual harassment cases, this language from Vance might do the exact opposite.