Monday, March 17, 2014
In Vance v. Ball State University, a 5-4 majority of the Court held that, for purposes of the Ellerth/Faragher test for employer liability for workplace harassment under Title VII, "supervisors" (as opposed to co-workers), refers only to those "empowered by the employer to take tangible employment actions against the victim." If the victim is harassed by a co-worker, rather than a supervisor, then the victim must meet a higher standard of proof by showing that the employer was negligent in controlling the working conditions. Justice Ginsburg, in dissent, said that the "ball is once again in Congress' court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today."
Last week, Democrats in the House and Senate introduced legislation to effectively reverse the Vance decision: the Fair Employment Protection Act (S.2133, H.R.4227). See press releases here and here. According to a summary issued by Sen. Tammy Baldwin, the bill would clarify who counts as a supervisor for purposes of holding employers liable for harassment, and would include "those who are in charge of an employee's daily work activities, thus able to reassign an employee whom they are harassing." The bill would also apparently clarify that the same standard should apply to all the major federal antidiscrimination laws, presumably to avoid any Gross v. FBL Fin. Servs.-type problems.