A recent U.S. Supreme Court decision will make it more difficult for employees to successfully sue their employers over alleged harassment in the workplace, in certain circumstances.

Employers can be held liable for harassment in two sets of circumstances.  If the harasser is a co-worker of the victim, the employer can be held liable only if the employer’s negligence contributed to the harassment. However if the harasser is a supervisor, the employer can be held liable even if it has done nothing negligent.

The latter circumstance emerged in 1998 when the court ruled that Title VII of the Civil Rights Act of 1964 allows harassment victims to hold their employers responsible for improper conduct by a supervisor. But it did not define what it meant by “supervisor.”

Under Title VII, an employer is strictly liable for a supervisor’s “tangible employment actions” but can also be held liable even in the absence of such tangible employment action if the supervisor has created a hostile work environment and the employer cannot show that it exercised reasonable care to prevent and promptly correct any harassing behavior.

In Vance v. Ball State University, the harassment victim argued that a supervisor was anyone with day-to-day oversight of an employee’s activities. In its June 24^th, 2013 decision, the court disagreed.  It defined a supervisor as someone who can affect a “tangible employment action”, such as hiring, firing, failing to promote, reassigning with significantly different responsibilities, and/or making decision that significantly change benefits.

This decision is favorable for employers because it shrinks the pool of employees for whose behavior the employer could be held liable. But it does not reduce the employer’s responsibility to take actions to prevent harassment in the workplace and to promptly investigate and correct any harassing behavior. It is still essential to have in place clear policies, procedures, workplace training and other mechanisms to ensure that inappropriate behavior is recognized, reported, and dealt with.

Anonymous hotlines are one mechanism to help an organization proactively deal with complaints of harassment or related issues and/or to demonstrate that it exercised reasonable care to identify and promptly correct harassing behavior.

People often think of hotlines only in the context of financial fraud or ethics issues, but in Ethical Advocate’s experience, almost 60% of hotline reports are related to human resources issues, including harassment complaints.  If your organization has a hotline intended for fraud and ethics-related issues, consider expanding its formal scope to capture HR-related issues as well, for additional return on investment. If your organization doesn’t yet have an anonymous hotline in place, please contact us  to learn more.

Sources:

Stempel, Jonathan and Lawrence Hurley. “Supreme Court Rules Against Employee Who Suffered Racial Harassment”, Reuters, June 24, 2013.

Stevens, Charles. “Vance v. Ball State University”, Employment Law Business Guide blog, June 25, 2013.