Who’s the Boss?

Understanding the Nuances of Employer Liability Under Title VII

Karina L. Schrengohst

Karina L. Schrengohst

You employ Jack and Jill. Jill files a lawsuit alleging that Jack was harassing her and you did nothing to stop it. Can you be held liable for Jack’s conduct? The answer: it depends.

It depends on whether or not Jack supervised Jill. If Jack was Jill’s supervisor, you may be held liable for Jack’s conduct. Under Title VII of the Civil Rights Act of 1964, which is our federal anti-discrimination law, employers may be found liable for the conduct of supervisors who harass subordinate employees.  If, however, Jack was Jill’s co-worker, you may be held liable only if you were negligent in discovering or remedying the harassment.

Problematically, courts across the country interpret what makes an employee a supervisor differently. Therefore, determining who exactly qualifies as a supervisor can be complicated. Some courts have a narrow, employer-friendly understanding that Jack is a supervisor if he has the power to ‘hire, fire, demote, promote, transfer, or discipline’ Jill. Other courts have a broader and more employee-friendly understanding that Jack is a supervisor if you have given him authority to ‘direct and oversee’ Jill’s daily work. The Equal Employment Opportunity Commission (EEOC) also favors this broader definition of supervisor. The U.S. Supreme Court will soon decide which courts have it right.

Maetta Vance, an African-American woman working at Ball State University in the catering department, sued her employer under Title VII alleging racial harassment by several individuals that she worked with. Her allegations include the repeated use of racial epithets (including references to the Ku Klux Klan), threats, slapping her in the face, and physically accosting her while on an elevator. Vance reported this conduct to her employer on multiple occasions. The university investigated each complaint and in some instances took disciplinary action. The courts involved in this case, Vance v. Ball State University, take a narrow view of supervisor liability. The district court and the appeals court both found that an individual Vance considered to be a supervisor, was, in fact, not a supervisor because she did not have authority to hire, fire, demote, promote, transfer, or discipline Vance.

Because a supervisor was not involved, the university could be held liable only if it was negligent. The court did not find the university to be negligent because it promptly investigated each of Vance’s complaints and took disciplinary action when appropriate. Consequently, Vance’s employer was not liable. Vance appealed this decision, and on Nov. 26, 2012, the Supreme Court heard oral arguments, but has not yet issued its decision.

Why should employers be paying attention? This decision could potentially change the current landscape of Title VII litigation and increase the risk of employer liability. If the Supreme Court adopts a broader, more employee-friendly definition of supervisor that includes anyone with authority to direct and oversee an employee’s daily work, it means that more employees have supervisory roles. This also means that there will be more occasions when employers could find themselves facing liability for allegations of discrimination and harassment than they currently do. Therefore, if the court favors a broader definition of supervisor, some employers may want to think about revising job responsibilities so that the portion of their workforce with supervisory roles is clearly delineated.

Regardless of the outcome, employers should take preventative steps to eliminate workplace harassment and reduce their risk of liability. Toward this end, employers should create and implement a written anti-discrimination and anti-harassment policy. In addition, employers should provide training on a regular basis to ensure that all employees understand the company’s policy. And additional trainings should be conducted for employees with supervisory roles to ensure they understand their obligations, know how to recognize what constitutes discrimination and harassment, and know the appropriate steps to take when discrimination or harassment is identified or an allegation is reported.

Employers have even more incentive to train supervisors because, as discussed above, employers are liable for the discriminatory and harassing conduct of employees in supervisory roles. Furthermore, supervisors are the first line of defense;  what they do can either create or prevent additional problems. Providing the proper training to employees in supervisory roles can help shield the company from costly and time-consuming litigation claims. And, finally, employers should establish a complaint procedure and have an investigative process that they uniformly use for all investigations.

Vance serves as a reminder to employers of the importance of taking such preventative measures. When co-workers are harassing other co-workers, one of the things the court is going to consider is whether you took reasonable measures to prevent and correct discrimination and harassment in your workplace. The employer in this case prevailed because it had a policy in place, promptly investigated each complaint, and took disciplinary action when appropriate.

 

Karina L. Schrengohst, Esq. is an attorney at Royal LLP, a boutique, management-side-only labor- and employment-law firm, specializing exclusively in management-side labor and employment-law litigation and preventative practices to avoid litigation. Royal LLP is SOMWBA-certified as a woman-owned business with the Mass. Supplier Diversity Office (formerly known as the State Office of Minority and Women’s Business Assistance); (413) 586-2288; kschrengohst@royalllp.com

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