In a close 5-4 decision, the Supreme Court just gave employers a reason to celebrate by limiting employer strict liability in harassment cases.

In Vance v. Ball State University, Maetta Vance (“Ms. Vance”), an African-American woman, sued her employer and alleged she was subjected to a unlawful harassment and a racially hostile work environment in violation of Title VII. The parties disputed whether the alleged harasser was a “supervisor” under the law. This is an important distinction because under Title VII an employer’s liability for workplace harassment depends on the harasser’s status as a “co-worker” or “supervisor.”

Generally, if the accused harasser is a “co-worker,” an employer is only liable if it was negligent with respect to the offensive behavior and the working conditions. But, if the accused harasser is a “supervisor,” an employer is strictly liable for a supervisor’s unlawful harassment if it results in tangible employment action (i.e., a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, etc.) If a supervisor’s harassment does not culminate in a tangible employment action, the employer can be vicariously liable for the supervisor’s creation of a hostile work environment if the employer is unable to establish an affirmative defense that it exercised reasonable care to prevent and correct any harassing behavior and the victim unreasonably failed to take advantage of the preventive or corrective opportunities the employer provided.

Ms. Vance argued supervisor status applies to anyone with the ability to exercise significant direction over another’s daily work. The Supreme Court rejected this definition and held that an employee is a “supervisor” for the purposes of vicarious liability under Title VII only if he/she is empowered by the employer to take tangible employment actions against the victim. The holding in Vance makes it harder for plaintiffs to prove a case of unlawful harassment and provides judges with greater authority to dismiss unfounded cases on legal grounds.

The Vance holding puts employers on notice of the importance of reviewing job descriptions and titles and ensuring internal documents truly reflect which employees have the authority to take tangible employment action against subordinates. These individuals should be provided training that would, among other things, remind each of their status as a supervisor and educate each on the potential risks to employers under Title VII for their conduct.

Employers should also continue to take steps to prevent workplace harassment by adopting, disseminating, and educating all employees on a comprehensive anti-discrimination and anti-harassment policy. Doing so will enable employers to demonstrate that it took reasonable measures to prevent harassment and discrimination.

If you would like to know more information about proactive steps your business can take to prepare it to defend against cases of unlawful harassment, or if you are interested in establishing a training program for your employees, please contact a member of Gunster’s Labor & Employment practice at 561-655-1980.

This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

Established in 1925, Gunster is one of Florida’s oldest and largest full-service law firms. The firm’s clients include international, national and local businesses, institutions, local governments and prominent individuals. Gunster maintains its presence in Florida with offices in Fort Lauderdale, Jacksonville, Miami, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, The Florida Keys, Vero Beach and its headquarters in West Palm Beach. Gunster is home to more than 150 attorneys and 200 committed support staff, providing counsel to clients through 18 practice groups including banking & financial services; business litigation; construction; corporate; environmental & land use; government affairs; health care; immigration; international; labor & employment; leisure & resorts; private wealth services; probate, trust & guardianship litigation; professional malpractice; real estate; securities and corporate governance; tax; and technology & entrepreneurial companies. Gunster is ranked among the National Law Journal’s list of the 350 largest law firms.


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