When a Supervisor is No Longer a Supervisor

With another blow to employee rights, the Supreme Court recently issued a decision in Vance that will demonstrably hurt plaintiffs from filing sustainable employment discrimination suits under Title VII. The Supreme Court decided to put their own spin on how the term “supervisor” is defined in the context of Title VII, severely limiting and burdening potential employees from holding their employers responsible for the discriminatory actions of a superior.

The Supreme Court concluded that a “supervisor” is now someone whom the employer has empowered to take “tangible employment action” against the aggrieved employee. Referring to prior decisions in the Seventh Circuit, the Court described a tangible employment action as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” The Court rejected the alternate and clearly fairer interpretation of supervisor, a superior who directs another employee’s work tasks.

By narrowing the definition of “supervisor,” the Supreme Court has now created a loophole for employers to curtail their exposure to liability. A supervisor’s harassment that does not result in a tangible employment action could result in the vicarious liability of the employer if they could not establish an affirmative defense, such as (1) the exercise of reasonable care to prevent and promptly correct harassing behavior, or (2) if the complainant unreasonably fails to take advantage of preventative or corrective measures made available to her.

In contrast, if the harassing employee is a co-worker, a negligence standard applies. To satisfy that standard, the employee must show that the employer knew or should have known of the offensive conduct, but failed to take appropriate corrective action – a much steeper burden. The Supreme Court is denying a generally accepted definition of supervisor, someone who has the ability to direct and affect a subordinate’s terms of employment. Simply because a superior cannot fire, demote, or transfer, does not mean they cannot alter the terms of  employment, thereby creating a discrimination polluted workplace where an employee would likely not feel comfortable to report claims of harassment without fear of retribution. Vance is a truly sad decision.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.


How New York City Anti-Discrimination Laws Protect You (Part II)

As we all know, discrimination can occur in many different forms – yet when we think of sexual harassment, we would not ordinarily categorize it as discrimination, but it is most certainly. Sexual harassment falls under the classification of sex and/or gender discrimination and in continuing our discussion of how the Restoration Act has expanded the bounds of the New York City Human Rights Law, let’s examines how it has affected sexual harassment cases.

Before the Restoration Act had been passed, New York Courts had treated sexual harassment as it had been treated under the Federal law. Under federal law, hostile environment sexual harassment is actionable only when it qualifies as “severe and pervasive.” This is quite a high burden, especially when sexual harassment can often occur in subtle form versus overt action. Luckily, the Restoration Act sought to dispense with this test, and with that in a series of cases the Appellate Division characterized this standard as “routinely barr[ing] the Courthouse door to women who have in fact been treated less well than men because of gender.” As a result, aggrieved victims are now only required to prove that they were treated less well than men in order to get a harassment case to a jury – clearly, a more fair approach.

The New York Court of Appeals has also chosen to draw another distinction between the Federal approach of assessing defenses to hostile environment sexual harassment cases and New York City’s. Under Federal Law employers have a defense to a hostile environment sexual harassment charge if: (1) the employee did not sustain a tangible employment action as part of the alleged harassment; (2) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (3) the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.

The Court held that the New York City Human Rights Law precluded application of the affirmative defense, as did its legislative history, which specifically provided for “[s]trict liability in the employment context for acts of managers and supervisors.”[3] The court noted that while historically, the court has interpreted state and local civil rights statutes “consistently with federal precedent,” it has done so only where the statutes “are substantively and textually similar to their federal counterparts.”  This decision was a landmark win for the aggrieved and innocent victims that simply seek justice in the face of unwanted sexual advances.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.