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 August 15, Michael Dell will present a live webinar, "Top 10 Ways Supervisors and Managers Create Legal Risks for Your Workplace Under Federal Law," sponsored by BLR.
On July 11, partner Francine Esposito will present a live webinar, "FMLA Leave Is Exhausted: How to Address Transfer and ADA Accommodation Requests, Fitness-for-Duty Exams, and More," sponsored by BLR.
Heather Weine Brochin and Theresa Kelly authored Employee Privacy Laws: New Jersey, a Q&A guide published by Thomson Reuters Practical Law.
Theresa Kelly and Alba Aviles authored an article, "The Weighty Matter of Obesity in the Workplace," which was published in the May 2019 edition of Employee Benefit Plan Review.
On May 31, Francine Esposito will serve as the moderator and speak on a multi-national panel of attorneys on the topic of "Unions in the Workplace," at the 2019 Lex Mundi Labor and Employee and Employee Benefits and Pension Joint Practice Group Global Meeting in Boston.
Day Pitney Press Release
Gary Betensky and Michael Napoleone were featured in a profile, "Day Pitney LLP: Firm Expands to Better Serve South Florida Clients," published in the March issue of The Boca Raton Observer magazine.
Day Pitney associate Arianna Mouré was featured in an article, "Practicing Law and Contributing to the Greater Good," published in the Fall/Winter 2018 edition of the Rutgers University School of Arts and Sciences Access Newsletter.
Heather Weine Brochin was quoted in an article, "Confidentiality Disqualifies Harassment Settlement Tax Deductions," published on the Society for Human Resource Management (SHRM) website.