In harassment suits, it’s easier to hold an employer liable for conduct of a supervisor than for that of a co-worker. That’s because supervisors are deemed to represent the employer. So when the Supreme Court released its decision yesterday in Vance v. Ball State University (pdf), defining supervisor more narrowly for purposes of Title VII claims, commentators announced that the decision will make it harder for employees to sue their employers for harassment and discrimination.
Before people get too excited, it’s important to understand that the decision won’t have any appreciable impact in California. That’s because workplace harassment and discrimination claims in California are invariably brought not under federal Title VII statutes, but under their state law counterpart — California’s Fair Employment and Housing Act or FEHA. Title VII imposes damage limitations, provides access to more conservative federal courts, and makes defenses available to employers that cause experienced plaintiff’s employment attorneys in California to shun it in most circumstances.
Now they have another reason to do so — namely, the narrower definition of supervisor. Under Title VII, according to yesterday’s decision in Vance, a supervisor is one whom the employer “has empowered . . . to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a significant change in benefits.”
In contrast, FEHA (specifically Government Code sec. 12926(s)) defines a supervisor as “any individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action . . . .” Those last six words expand the definition from those who make decisions to those with authority to make recommendations.
So if you’re a California employee worried that your more senior colleagues now get to harass you with impunity, take a step back from the ledge. You’re still protected. And if you’re a California employer preparing to celebrate that you don’t have to worry about the behavior of your more junior underlings, put the cork back in the champagne (not literally — it’s impossible). Or better yet, instead of waiting for the courts or legislatures to come to your aid, think about what you can do to lessen your company’s potential exposure. For example, when was the last time you had your supervisors trained about recognizing and preventing workplace harassment?