On June 24, in a 5-4 decision, the U.S. Supreme Court decided an important Title VII case that clarifies the definition of the term "supervisor" for purposes of liability analysis. In Vance v. Ball State University, the plaintiff is a black woman who sued her employer, Ball State University, claiming it violated Title VII through the actions of another employee who allegedly created a racially hostile work environment. The central issue was whether that other employee was a "supervisor" or a mere "co-worker" for purposes of Title VII.
Pursuant to the Supreme Court's decisions in Faragher v. Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), if a harassing employee is simply a co-worker of the victim, the employer is liable only if it is negligent in controlling or responding to the co-worker's conduct. If, however, a harassing employee is a "supervisor," the analysis is different. Specifically, if a supervisor's harassment culminates in a tangible employment action, the employer is strictly liable. If a supervisor's harassment does not culminate in a tangible employment action, the employer may prove as an affirmative defense that (1) the employer exercised reasonable care to prevent and correct any harassing behavior, and (2) the plaintiff unreasonably failed to take advantage of the available preventive or corrective opportunities offered by the employer. Faragher and Ellerth left open the question of who constitutes a "supervisor" under Title VII.
In Vance, the Supreme Court answers that question by holding an employee is a "supervisor" for purposes of imposing liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the complainant, i.e., actions that effect a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." The Court rejected what it deemed a "nebulous" approach advocated by the EEOC's Enforcement Guidance, which defined a "supervisor" as an employee who had authority "of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment." The majority indicated that in contrast to the EEOC Guidance, the Court's definition of "supervisor" was intended to provide clarity and trial courts generally should be able to determine whether an employee is or is not a supervisor based on the undisputed material facts.
In light of the Vance decision, employers should examine their classifications of employees and should ensure they are providing appropriate supervisory training to those employees who fall under the Supreme Court's definition of a supervisor.
On January 17, John DeSimone and Heather Weine Brochin presented a discussion about employment agreements and negotiation strategies at the NYU School of Medicine.
On October 10, James Bowers will share his personal perspectives on the History of Slavery and Race in South Carolina at UConn School of Law.
Day Pitney Alert
Rachel Gonzalez, Mary Rogers and Patrick McCarthy wrote an article "NLRB Eases Organizing of Temporary Workers" for CBIA’s H&R Safety Newsletter on the impact of the recent decision of the National Labor Relations Board (NLRB).
Dan Schwartz and James Leva wrote an article, "Where New Conn. Ban-The-Box Law May Be Headed," for Law360. The article outlines what employers need to know about Connecticut's recently enacted "ban-the-box" law, titled "An Act Concerning Fair Chance Employment."
Michael Furey was quoted in an article, "The Biggest New Jersey Cases of 2016," which was published in Law360.
Michael Furey was quoted in an article, "NJ Panel Grills Hospitals Over Discovery In Horizon Row," in Law360. Day Pitney is representing five New Jersey hospitals in a lawsuit against Horizon Healthcare, relating to its new, multi-tiered health plan called OMNIA. Furey advocated on behalf of the five hospitals on Wednesday before a New Jersey appeals court that Horizon should turn over a consultant's report and certain agreements relating to how Horizon categorized hospitals under its controversial OMNIA Alliance program and the impact of OMNIA on the hospitals. These Tier 2 hospitals are alleging various claims, including breach of contract and citing concerns that being ranked in the lower tier of the program will cost them business. Horizon contends the sought-after materials, including a financial analysis, strategic alliance agreements and rate agreements between the insurer and OMNIA network hospitals, contain trade secret and confidential information. "If we're going to prove our hospitals should be Tier 1 alliance members, we need the documents and the information," Furey said.
Hartford, Conn., May 26, 2016 - Day Pitney LLP is pleased to announce that Employment and Labor attorney Albert Zakarian has been chosen as a Lifetime Achievement winner of The Connecticut Law Tribune’s second annual Professional Excellence Awards 2016. The Professional Excellence Awards 2016 recognize 28 lawyers, who were chosen from over 60 nominees, as either Lawyer of the Year or Lifetime Achievement recipients, according to The Connecticut Law Tribune. The Lifetime Achievement Awards honor "attorneys who have excelled over a career."
John McLafferty was quoted in an article, "Final overtime regulations less drastic than feared," in Massachusetts Lawyers Weekly. In the article, McLafferty discusses how the Department of Labor’s final revised federal overtime regulation will impact businesses. "The reality is that the rule made more people eligible for overtime; it didn’t create any obligation for employers to pay more overtime," he said. McLafferty added that the regulation’s impact on employees could have a wider effect on office culture and policies, which may affect a company’s ability to attract and retain workers. In addition, he noted that employers should take this opportunity to ensure that all of their employees are properly classified for overtime purposes.
Albert Zakarian has been chosen as a winner of The Connecticut Law Tribune's second annual Professional Excellence Awards. The awards recognize two dozen lawyers for outstanding service to the profession during their long careers. The publication received more than 70 nominations. Profiles of awardees will appear in the Law Tribune in May. An event will also be held in May to recognize the winners. More about the awards can be found here.