Yesterday the US Supreme Court rendered its decision in Vance vs. Ball State University. In a nutshell, this decision held that an employer can only be liable for a co-workers’ racial harassment if the co worker is a “supervisor” and, if a supervisor, then whether the employer was negligent in allowing the conduct to occur. The case is of significance in California since many lawsuits here are tried under Title VII (something that we try not to let happen when possible since employment lawsuits under the California Government Code usually result in better results for our clients), and in any case, many times California courts look to EEOC-based decisions for guidance.
In Vance, the plaintiff was harassed daily by a co worker/lead. A “lead” is generally a super-glorified co worker who has been given the opportunity to supervise and in some cases assign actual specific job duties. A lead does not usually discipline, hire, fire, demote or otherwise supervise the actual workers on the job. The harassment took many forms, mostly of a personal nature, such as banging pots and pans, intimidating behavior, bad assignments, etc. Of critical importance, the co worker was mostly a day-to-day lead, with power to make assignments. However, the court held that under EEOC/Title VII law, the co worker was not a “supervisor”. The court held that a supervisor is one with the power to hire, fire, promote, demote, transfer or discipline an employee. The dissent argued that the realities of the workplace reveal that in the largest companies, supervisory authority is delegated to leads and to hold a victim to the standard of finding a supervisor only to be one with power over ultimate employment decisions is unrealistic and gives large employers an unfair “pass”.
But the decision goes further to harm employees by holding that even when the harasser is a supervisor, the employer is only liable when they are negligent in their supervisory duties. Some examples given by the court were the failure to monitor the workplace, failure to respond to complaints of harassment and/or discrimination, lack of a system for reporting harassment, or a policy of discouraging complaints. (I have often-times found another act which the court seems to have overlooked, and that is “negligent hire”. It is not hard to find acts of past misconduct or reckless thinking (say via Face Book) which could lead to a lawsuit or exposure of an employee to these bad acts.
The dissent in the Vance opinion urges Congress to follow the example of the Lilly Ledbetter Equal Pay Act, which overturned the Supremes on when the statute of limitations (time allowed) to sue should start to run in Federal Age Discrimination Cases. This practitioner joins the dissent. California employees are entitled to sue their employers for harassment when based on a prohibited category such as age, sex, race, religion, physical or mental conditions. Let’s make that right national in scope.