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Employers May See More Sexual Harassment Lawsuits

by Martin Salcedo, Esq. - The Human Equation on 11/20/2012
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An employer’s liability for sexual harassment under Title VII of the Civil Rights Act depends on whether the harasser is a supervisor. If the alleged harasser is the victim’s co-employee, the employer may have various defenses to liability. However, if the harasser is a supervisor, Title VII’s strict liability standard may be triggered and the employer may be left defenseless.

So, who is considered a supervisor under Title VII?

This seemingly simple question has divided federal courts for years. Though courts agree that a supervisor must have some power over a co-employee, they disagree on the amount of power necessary to turn an employee into a supervisor.

Given the importance of separating employees from supervisors under Title VII, the U.S. Supreme Court has stepped in to settle the dispute. In Vance v. Ball State University, the Court is being asked to define “supervisor” for purposes of establishing an employer’s liability for sexual harassment under Title VII.

In Vance v. Ball State, the employer is arguing that the alleged harasser cannot be considered a supervisor under Title VII because she did not have the authority to hire, fire, demote or discipline Ms. Vance. Nevertheless, Ms. Vance is arguing that the authority to direct her daily work is enough to make the alleged harasser a supervisor under Title VII.

To resolve this dispute, the Supreme Court is expected to choose one of the following definitions of “supervisor” under Title VII.

  1. A supervisor is an individual with the power to directly affect the terms and conditions of the victim’s employment, which primarily consists of the power to hire, fire, demote, promote, transfer, or discipline the victim.
  2. A supervisor is an individual with the power to direct the victim’s daily work activities.

A brief filed by the Obama administration argues that the second definition, which is consistent with the Equal Employment Opportunity Commission’s 1999 enforcement guidelines, is the correct choice. Interestingly, the brief argues that even under the EEOC’s definition, the harasser in Vance does not qualify as a supervisor under Title VII.

The Court is scheduled to hear oral arguments in this case on November 26, 2012.

Regardless of how the Court rules in Vance, some employers will have to change their policies and procedures to limit the risk of sexual harassment liability. The most important change will likely involve the manner in which sexual harassment prevention training is provided to an organization’s supervisors— whoever they may be.

If you would like to see how The Human Equation can train your supervisors how to identify and prevent sexual harassment, click here.

The Human Equation prepares all risk management and insurance content with the professional guidance of Setnor Byer Insurance and Risk.

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