Let’s talk about employer liability. For those of you who have not had harassment updates over the past 2-3 years, it is important that you become familiar with some recent decisions.
The issue of employer liability is naturally one of concern to all cities. In 2013, in a case known as Vance v. Ball State University,the Supreme Court stated that a hostile environment depends on whether or not the harasser is the victim’s supervisor. But the termsupervisor may not mean what a lot of us think it does. Supervisor does not refer to an individual’s title or the city’s job category, but rather anyone who has the power to:
- Undertake or recommend tangible employment decisions affecting the employee; or
- Direct the employee’s daily work activities.
Therefore, for example, crew leaders who, on a daily basis, direct the activities of employees are considered supervisors in the eyes of the court. “Dig the hole here, not over there!” perhaps gives you all an idea of how simple it is to fulfill the courts version of what a supervisor really is.
And here is the really scary part: the Court held that an employer isalways liable for a supervisor’s harassment if it culminates in a tangible employment action…even if the organization has/had no knowledge that harassment was taking place. There is absolutely no affirmative defense to liability in these situations. Wow! That seems harsh doesn’t it? The key then is to continue to educate your workforce. Encourage non-supervisory employees to rebuff a “supervisor’s” advances or derogatory comments of a racial, sexual, or profane manner. Let them know that the organization will support them for reporting any actions that create discomfort. Furthermore, tell anyone of “supervisory” status to avoid making any offensive comments or exhibiting any offensive behaviors. Remind them that harassment does not just refer to actions and comments of a sexual nature, but all offensive actions and behaviors pertaining to any protected class as well as any comment or action that is reasonably perceived as derogatory.
What About Non-Supervisory Harassment?
The Court also addressed the issue of employer liability by employees who are not supervisors. The Court stated that liability exists if the employer was negligent in failing to prevent harassment from taking place.
Also relevant is evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed.
In harassment wherein the perpetrator is not a supervisor, the employer may avoid liability or limit damages by establishing an affirmative defense that includes two necessary elements:
- The employer exercised reasonable care to prevent and correct promptly any harassing behavior, and
- The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Is It Discrimination If the Genders Are Treated the Same?
Harassment does not violate federal law unless it involves discriminatory treatment on the basis of race, color, sex, religion, national origin, age of 40 or older, disability, or protected activity under the anti-discrimination statutes. Federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not “extremely serious.” Rather, the conduct must be “so objectively offensive as to alter the ‘conditions’ of the victim’s employment.” The conditions of employment are altered only if the harassment culminated in a tangible employment action or was sufficiently severe or pervasive to create a hostile work environment.
However, a relatively recent ruling suggests a new way of looking at discrimination. In the Case of Christopher v NEA, a supervisor behaved in an equally degrading manner to both men and women within his supervisory purview. But the Ninth Circuit stated that equal degradation (the absence of discrimination) does not defeat a claim that the genders were treated differently.
How is it possible to treat the genders the same, yet differently, I wondered. As I read further in the case, the Court’s answer appeared:
“…because there may be a subjective difference between the way the degradation was perceived and experienced by the different genders.”
Therefore, an ill-tempered supervisor who creates a hostile environment by repeatedly cursing, for example, may subject your City to liability regardless of intention and regardless of whether the conduct is overtly discriminatory.