The US Supremes issued their opinion in Vance v. Ball State University this morning, holding that an employer is not liable for its employee’s racial or sexual harassment unless the harasser is a supervisor of the victim employee. The Court defined supervisor as someone who has the ability to “significantly change” the employee’s “employment status,” such as to hire, fire, demote, promote, transfer, discipline or change the employee’s job duties.
If the harasser is not a supervisor, then the employer will not be liable for harassment unless the employer is negligent- meaning it did not prevent the harassment.
The Court described prevention of harassment as having a system in place to respond to complaints and monitoring the workplace for problems with harassment. This usually means policies, training, investigating complaints, and getting rid of people who harass others.
Justices Ginsburg, Breyer, Sotomayor and Kagan dissented saying that employers should be responsible for providing a workplace free of illegal harassment and should be directly liable whenever harassment occurs. They were concerned that restricting liability to harassment by supervisors is too narrow, especially given the reality of work today, where titles and hierarchies are much more fluid.
Here is the opinion in Vance v. Ball State University.
The Legal/Technical Issue
The legal technicality here is that harassment is an intentional wrong. Usually, one person is not liable for another person’s intentional wrongs.
It gets tricky with discrimination though, because employers are generally liable for the acts of their employees that are within the course and scope of the job duties. So even though discrimination is usually intentional, the result of discrimination is that someone gets fired, disciplined, demoted, or there is some other negative employment action. Since hiring, firing, and disciplining employees is part of the work of every employer, the company is generally liable for illegal discrimination.
Harassment though, is not part of anyone’s job duties. So the courts have said that an employer is not automatically liable for harassment.
What today’s opinion said is that companies can be liable for harassment: 1) when the harasser is the victim’s superviors; or 2) when the company either failed to have a process in place to prevent harassment, or knew (or should have known) about the conduct and did not investigate and/or correct it.
What to do:
Even though lawyers will hail this decision as a victory for employers, this is not about managing risk or relying on technical legal definitions. It’s about having a good place to work.
Don’t try to game the definition of “supervisor.” Harassment is wrong and you don’t want it in your workplace.