Is that harassing employee a supervisor? Does it matter?

October 1, 2012 at 6:39 am Leave a comment

The First Monday in October makes legal enthusiasts like myself as excited as Charlie Sheen in a liquor store.

Today marks the start of another Supreme Court term and although the public is understandably more interested in high profile disputes,  such as the use of affirmative action in college admissions, there are always issues that will have a direct impact on credit unions and this year is no exception.

The case that most intrigues me asks a question that has been unanswered by the Court for 14 years and impacts the scope of every employer’s potential liability for lawsuits alleging racial or sexual discrimination under federal law: when is an employee a supervisor?  The answer is not as clear-cut as you might think and is sometimes crucial to who wins or loses a discrimination lawsuit.

In Vance v. Ball State University, the Court will hear an appeal  from  Maetta Vance, an African-American employee of the university’s food catering service who alleges she was the victim of racial discrimination by a group of employees including Saundra Davis, who she claims was her supervisor.  Mrs. Vance alleges this group of employees referred to her with racial epithets, physically threatened her and that one of them boasted of having family members that belong to the KKK.

No one is questioning that such behavior is atrocious, but the key to the  lawsuit going forward hinges on whether Davis was Mrs. Vance’s  supervisor.  Why?  Because Title VII of the Civil Rights Act makes employers vicariously liable for the conduct of their supervisors.  In contrast, an employer is responsible for the harassing behavior of a co-worker only when it  does not respond appropriately to an employee’s complaints about being sexually harassed or discriminated against.

For the Seventh Circuit, the case was straightforward.  To be a supervisor a person must have the power to hire, fire, demote, promote, transfer, or discipline an employee and, since Davis could do none of those things to Mrs. Vance, the University could only be liable if it negligently responded to Vance’s complaints.  In dismissing the lawsuit, the court noted that the University had a policy in place allowing employees to report claims of discriminatory conduct to their supervisors and that the University responded to each one of the Davis complaints by investigating the allegations and taking action against employees that was appropriate given the facts as it knew them.

In contrast, had this case been argued in New York, Mrs. Davis would have most likely been allowed to go forward with the lawsuit.  That’s because the Second Circuit, which has jurisdiction over New York, has adopted a broader interpretation of who is a supervisor.  For the Second Circuit a supervisor includes individuals given power to make decisions over a person’s work, such as determining and overseeing workplace assignments.  In other words, in New York, a company can be vicariously liable for the conduct of its employees even though the offending supervisor can’t hire, fire, or discipline the person complaining of the harassment.

If the Supreme Court adopts the Seventh Circuit’s narrower interpretation, it won’t change how you go about enforcing sexual-harassment  and anti-discrimination policies in your workplace, but it but it will narrow your liability, assuming you have the appropriate policies and procedures in place and you make sure they are actually implemented.

 

 

Entry filed under: Compliance, HR, Legal Watch. Tags: , , , .

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Authored By:

Henry Meier, Esq., General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association.

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