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The United States Supreme Court issued a decision in Vance v. Ball State University that makes it easier for employers to defend against harassment suits.  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 address it.  If the harasser is the employee’s “supervisor,” a stricter standard applies.  Generally, the employer is “vicariously liable” for the actions of the supervisor, even if nobody else knew about the harassment.  The Vance decision resolves the question of who is a supervisor, defining it as someone who has the ability to take “tangible employment actions,” rather than someone who merely oversees the employee’s work.

If a supervisor who merely oversees an employee’s work harasses that employee, the employee must show the employer knew or should have known about the harassment and failed to take reasonable steps to stop it.  If a supervisor has the ability to take tangible employment actions against the employee, the employer is liable unless it can show both the employer exercised reasonable care to prevent and correct the harassment and the employee unreasonably failed to take advantage of opportunities to prevent or correct the harassment.  If the supervisor actually takes a tangible employment action against the employee, the company is strictly liable for the harassment.  A “tangible employment action” is anything that has a significant impact on the employee’s employment status, such as hiring, firing, failing to promote, reassigning the employee to significantly different responsibilities, or significantly altering benefits.  For employers with low-level supervisors who cannot take tangible employment actions, this decision significantly reduces potential liability.

In all cases, it is important to have a well-written anti-harassment policy.  Make sure the policy allows harassment to be reported to more than one person in management.  If only one person is designated to receive harassment complaints, it could cause problems if that person is the harasser.  Allowing reports to any member of Human Resources or any supervisor is the best approach.  Also create job descriptions that show the supervisory status or lack of such status.  Even if the document sounds self serving, it should help build a defense for employers with low-level supervisors with limited authority.

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.