Tag: Vance v Ball State

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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.

Categories
Sex Discrimination Sexual Harassment Title VII

Vance v Ball State Part 2: What to Make of Footnote 8

In our last blog post, we looked at the US Supreme Court’s decision in Vance v. Ball State. Very generally, Vance says that a “supervisor” under sexual harassment law must be someone who has the authority to hire and fire.

This was not welcome news to employee rights advocates. In my last blog post, I suggested that all of the news from Vance was not bad. This brings us to the Supreme Court’s peculiar footnote 8.

Footnote 8 addresses a situation where an alleged supervisor cannot hire and fire but does have the authority to make hiring and firing recommendations that are given weight. In footnote 8, the Supreme Court suggests that people who have such advisory authority would be “supervisors,” even though they do not personally have the authority to hire and fire.

If footnote 8 means what it says, then the Vance decision could be interpreted very differently than many commentators are now assuming.

Footnote 8 would allow lower courts to understand the term “supervisor” to include those people who have  the ear of those who make hiring and firing decisions, even if he or she does not have that authority themselves. This seems like a rational conclusion. Expect employee rights advocates to advance this interpretation.

So, what to make of footnote 8?  It suggests a more common sense reading of the Vance decision that some folks are advancing.  To take advantage of it, however, counsel for employees must do the hard work in discovery.  We must show that a “supervisor” really is a “supervisor.”  In other words, find out whether they have the ear of the upper management.  Find out whether their advise regarding “hiring” and “firing” is given weight.  Find out if they are classified as FLSA exempt.  If so, this may be probative of the fact they can cause a termination, especially if they are classified as exempt under the executive exemption.  Footnote 8 in Vance can be valuable tool, but only if it is used.

Categories
Sexual Harassment Title VII

Supreme Court Hears Argument in “Supervisor” Harassment Case

On Monday, the U.S. Supreme Court heard oral arguments in a sexual harassment case, Vance v. Ball State University, that will decide who is a “supervisor” for purposes of sexual harassment law.  A day later, my good friend and Nashville lawyer J.K. Sims (who represents employers in sexual harassment cases) was sworn into the bar of the U.S. Supreme Court.  Two ground breaking events in one week.  Washington will never be the same.

Anyway, back to the sexual harassment case. As I mentioned in a previous post,  sexual harassment law is very different depending on whether the harasser is a “supervisor” or “co-worker.”  You can read more about the importance of this distinction in my other post.

One of the primary issues is whether a person must have the authority to hire and fire in order to be a “supervisor.”  The Seventh Circuit said, “yes.” Interestingly, even the lawyer for the defendant seemed to concede that this would be too restrictive of a definition.  Justice Roberts suggested that he might favor a definition of “supervisor” that was more narrow than either lawyer was advocating.  He acknowledged that a requirement that a supervisor be able to hire and fire might lead to some “harsh” results, but he suggested that such a bright line rule might nevertheless bring some certainty to the law.

Justice Kagan, who was previously dean of Harvard Law School, pointed out that professors do not have the authority to hire and fire their assistants.  Therefore, such a bright line rule would lead to a situation where a professor could make life a “living hell” for his assistant, yet not be a “supervisor” for purposes of sexual harassment law.  Such a result would seem silly.

It remains to be seen whether this opinion will drastically change sexual harassment law.  Despite the suggestions of Justice Roberts from the bench, my guess is that the Court will adopt some sort of case case-by-case test that will give great deference to the trial courts in making these decisions.