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.
Michael K. Furey authored article, "Is It Worth the Risk to Represent a Client Who Has Fired a Previous Attorney?," for the New Jersey Law Journal.
On February 26, Heather Weine Brochin will be speaking at "Weathering NJ's New Employment and Contracting Laws," a seminar presented by the New Jersey Builders Association (NJBA) and held in Robbinsville, NJ.
On January 7, Francine Esposito presented a live webinar, "FMLA Leave Is Exhausted: How to Address Transfer and ADA Accommodation Requests, Fitness-for-Duty Exams, and More," sponsored by BLR.
Mark Romance authored an article, "Five Tips for Representing a Non-Party Served with a Document Subpoena: Welcome to the Party?," published by the American Bar Association Section of Litigation.
On October 24, Heather Weine Brochin and Mike Dell will present a webcast, titled "2019: A Year of Dramatic Changes for Mandatory Employment Arbitration?" in partnership with Celesq and West LegalEdcenter/Thomson Reuters.
The Connecticut Law Tribune interviewed top attorneys, including Day Pitney Partner and Executive Board Member Glenn Dowd, about Big Law continuing to come up with new safety protocols and procedures in how to safely deal with opening its offices.
Day Pitney Press Release
Day Pitney Managing Partner Thomas Goldberg was quoted in Hartford Business Journal article, "Hartford law firms see spike in COVID-19-related business."
Daniel Schwartz was quoted in Hunt Scanlon Media article, "Defending Against the Cancel Culture from the Inside Out."
Day Pitney Press Release