Few things in employment law are more convoluted than the rules the Supreme Court has made for holding employers responsible for sexual harassment at the workplace. Those rules anticipate three possible situations:
1. The harassment is done by a supervisor, and results in a “tangible employment action,” such as getting demoted, fired, suspended, or losing salary. Think of the boss firing his assistant for refusing to go out with him. When this happens, the employer is automatically liable for the harassment.
2. The harassment is done by a supervisor, but there is no tangible employment action. Think of the boss hanging pornography at his desk and constantly making unwanted sexual advances on his assistant. When this happens, the employer is liable for the harassment, but can get out of trouble if it can prove that a) it took reasonable care to prevent the harassment, and to correct it if it did occur, and b) the victim unreasonably failed to take advantage of the procedures available to correct the harassment. So if a supervisor harasses a victim, without a tangible employment action, and there weren’t effective workplace procedures in place, the employer is liable.
3. The harassment is done by a co-worker. Here, the employer is liable only if the victim can prove the employer was negligent in controlling the workplace. Think of the assistant being harassed daily by a salesperson, with everyone in the office, including the boss, aware of it, but the employer does nothing – the employer is probably liable. But if the employer had no reason to believe that the harassment would happen, and took steps to stop it as soon as it learned the harassment happened, the victim is going to have a hard time winning that case.
So, victims of sexual harassment have an easier time of it if they can show their harasser is a supervisor. Of course, that means the Supreme Court wants to make it harder to show someone is a supervisor. In Vance v. Ball State, decided on June 24th, Justice Alito’s decision held that to be a supervisor for Title VII purposes, that individual must have the power to take a tangible employment action against the victim. This is contrary to the rule put forth by the Equal Employment Opportunity Commission (EEOC), which provided someone could be a supervisor if they controlled the day to day events in the victim’s workplace. The Vance decision also overturns the longtime rule in the Second Circuit, which similar to the EEOC’s rule, defined a supervisor as someone who had the authority to direct the victims daily activities. Mack v. Otis Elevator, 326 f.3d 116 92d Cir. 2003). Now, to be considered a supervisor, the harasser must have the authority to hire, fire, promote (or fail to promote), reassign with different responsibilities, or change salary or benefits.
What remains to be seen is how courts, under this new rule, will react to employers who try to artificially limit the number of supervisors by requiring all tangible employment decisions to be approved by a few, senior managers, or even a single owner for small employers. The Vance decision addresses this briefly, and implies that if the real authority lies with the lower level employee who recommends tangible employment actions, with the more senior employee not truly exercising independent judgment over tangible employment actions, the lower level employee will be considered a supervisor under Title VII. But time will tell how much input a more senior manager needs to have before his subordinate is no longer considered a supervisor.
What is clear from Vance is that a harasser with the ability to make a victims workday unpleasant – as in a famous case where the harasser told his victim, “go out with me or you’ll be cleaning toilets for a year,” will only result in employer liability under Title VII if the employer is negligent in some way.
There is good news, however, for employees in New York City. The New York City Human Rights Law (HRL) makes employers automatically liable for harassment caused by an employee who “exercised managerial or supervisory responsibility.” NYC Administrative Code 8-107(13)(b)(1). Prior to Vance, the only New York State court to consider the question adopted the less restrictive EEOC and Second Circuit definitions of supervisor; see O’Niel v. Roman Catholic Diocese of Brooklyn, 927 N.Y.S.2d 818 (N.Y. Sup. Ct. April 27, 2011). This reasoning should survive the Vance decision, since the HRL, by its own terms, is to be interpreted broadly and independently of Federal courts’ interpretation of Title VII. So, in New York City at least, to be a supervisor one need only have day to day authority over an employee, and need not have the power to hire, fire, demote, etc.