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The United States Supreme Court agreed to hear a case next term that will determine who is a “supervisor” when dealing with Title VII harassment cases.  Like questions of who is an “employee” or “employer,” determining who is a “supervisor” is often not straightforward and different laws use different definitions.  The Supreme Court’s decision will clarify under what circumstances an employer can be held liable for harassment by an employee with “supervisory” authority over the victim.

When an employee is harassed by a co-worker on the basis of a protected status, such as race or sex, the company is liable only if it knew or had reason to know about the harassment and failed to take reasonable steps to stop it.  Typically, the victim reports the harassment to management, triggering management’s obligation to intervene.  If the harasser has supervisory authority over the employee, however, the standard is stricter.  The employer is “vicariously liable” for the actions of the supervisor, even if nobody else knew about the harassment.

The Supreme Court will resolve a difference of opinion among the federal circuits as to who is a supervisor.   The First, Seventh, and Eighth Circuits require the supervisor to have formal authority over the victim’s employment status, such as the ability to fire or discipline the victim.   The Second, Fourth, and Ninth Circuits, on the other hand, require only that the supervisor oversee the victim’s assignments and performance.  For companies with multiple levels of supervision, this distinction can make a huge difference in their potential liability.

Regardless of how the Supreme Court rules, employers have opportunities to avoid vicarious liability for a supervisor’s actions.  If a supervisor harasses an employee, the employer may avoid liability by proving both that it took reasonable care to prevent and promptly correct the harassment and that the victim unreasonably failed to take advantage of preventive or corrective opportunities.  A well-written anti-harassment policy can help you meet both standards.  When determining if your policy adequately protects you, consider whether your policy leaves situations where an employee can reasonably fail to report harassment.  A common mistake is naming only one person to whom the harassment can be reported.  If you require the victim report the harassment to the HR Manager, and the HR Manager is the perpetrator of the harassment, it is not unreasonable for the victim to fail to report it.  Similarly, if the victim can only report to people of one color, sex, age, etc., the employee may be able to claim their failure to report was reasonable.  Allowing for multiple channels, such as reporting to any member of HR or any supervisor, will improve an employer’s chance of successfully using this defense.  There is one important limitation to this entire defense – if the supervisor takes an adverse employment action against the employee, such as demotion or discipline, this defense cannot be used.  Review your policy and make sure it maximizes your chance for a successful defense.

Brody and Associates regularly provides training and counseling on maintaining a harassment free environment and on employment law issues in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.