Last June, the Supreme Court narrowed the definition of supervisors to employees with the authority to hire and fire.
In Vance v. Ball State University, the Supreme Court narrowed the circumstances under which an employer may be liable for workplace sexual harassment. This case will affect the way Ohio and Cincinnati sexual harassment lawyers evaluate cases.
Title VII prohibits sexual and racial harassment that creates a hostile or offensive work environment or results in an adverse employment decision (such as the victim being fired or demoted). The success of a Title VII harassment suit often depends on who does the harassing. If the harasser is someone other than a supervisor, the employer is only liable if its negligence contributed to the harassment – i.e., if it knew or should have known about the harassment and failed to take corrective action. If the harasser is a supervisor, and the harassment results in an adverse employment decision, the employer is strictly liable. If the harasser is a supervisor but the harassment does not result in an adverse employment decision, the employer is liable unless it can establish it exercised reasonable care to prevent and correct harassment and the victim unreasonably failed to take advantage of these preventive or corrective opportunities (for instance, if the employer has a policy prohibiting racial or sexual harassment and the employee unreasonably fails to report harassment under the policy).
Obviously, under these standards, a victim of harassment will have a stronger case against his or her employer if a supervisor, rather than a coworker, did the harassing. And until Vance v. Ball State University, a supervisor was anyone with authority to direct an employee’s daily work activities or with authority to take tangible employment actions. Unfortunately, in Vance, the Court eliminated the latter definition of a supervisor – now, an employee who directs and supervises others’ daily tasks, but who doesn’t have authority to fire, hire, demote, or promote, is just a coworker for purposes of Title VII.
For example, an assistant store manager who assigns and oversees his employees’ work and schedule, is subjectively viewed as a supervisor by his employees, but who has no authority to make hiring and firing decisions without approval from his own manager, probably does not qualify as a supervisor under the law. A cashier suffering continuous sexual harassment at the hands of the manager – who may very well be the only manager with whom she is in contact – will only have a legal remedy if the store’s corporate level knew or should have known about the harassment and did nothing to correct it. Not only will the cashier probably not have a clue as to how to report the harassment, but she will undoubtedly fear retaliation if she does go over her manager’s head to report it. Thus, under the law’s new formulation, she is left remediless.
Case law on the extent of the authority to take tangible employment actions is still developing in the wake of Vance. The Southern District of Ohio recently decided that a person who doesn’t necessarily hire or fire employees, but who makes recommendations or evaluations that directly lead to a change in employees’ employment status, is a supervisor.[1] While it remains to be seen whether other courts will interpret Vance this generously, it is clear the Supreme Court’s decision leaves many harassment victims with a difficult negligence standard of liability against their employers. Cincinnati and Ohio employment lawyers who deal with racial and sexual harassment claims will have to take this new standard into account when advising clients and evaluating cases.
[1] Gonzalez v. Hostetler Trucking, Inc., 2013 WL 5182835 (S.D. Ohio Sept. 12, 2013).
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