Wednesday, October 31, 2012

Supreme Court to Decide Who's the Boss in Sexual Harassment Cases

Increasingly, individual employees are being named in employment lawsuits because of their perceived involvement in adverse employment decisions made by their employer.  The reason is:  if the employee is involved in an alleged incident of sexual harassment, for example, and he or she is a "supervisor," the employer may be held liable for the acts of that employee.

However, federal employment law, at least in the context of sexual harassment claims, makes a distinction between supervisors and non-supervisors or co-workers.  Under federal law, when the alleged harasser is a co-worker, the employer will only be liable for the harasser's actions if the employee proves that the employer was negligent.  But when the employee is a supervisor who creates a hostile work environment, the employer is liable unless it can prove a defense, for instance, that it had anti-harassment policy and that the employee who was the victim of the harassment failed to take advantage of such a policy.

This term, the U.S. Supreme Court is expected to decide, in the case of Vance v. Ball State, 2008 U.S. Dist. LEXIS 69288 (S.D. Ind. 2008) aff'd 646 F.3d 461 (7th Cir. 2011), the issue of the scope of supervisor liability, and resolve the question of who qualifies as a supervisor.  Here in the Second Circuit, the court of appeals has defined the term supervisor broadly to include any individual with the power to direct and oversee the work of the alleged victim. This is also the definition adopted by the EEOC.  More specifically, the Second Circuit has held that for the purpose of supervisor liability, a supervisor is one who possesses "authority to direct the employee's daily work activities" even if he lacks the authority to take tangible employment actions against the victim.  Mack v. Otis Elevator, 326 F.3d 116, 127 (2d Cir. 2003).  Other federal courts have applied more narrow definitions of the term.

The Supreme Court will likely adopt either a broad or a narrow definition, but until then employers in New York are well advised to follow the broader definition of "supervisor" and understand that they will be liable to an alleged victim of harassment for the acts of an employee who is responsible for directing and supervising work, not just one who has the authority to make employment decisions.

Stay posted for the Supreme Court's decision.

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