On June 24, 2013, the United States Supreme Court issued its ruling in Vance vs Ball State University. The issue before the court was the definition of the term “supervisor” for purposes of employment related claims. Under Title VII, the federal anti-discrimination statute, an employer can be held responsible for illegal harassment in those circumstances where the employee has been empowered with the authority to take “tangible employment action” against the victim. According to the Court, the employer can only be held responsible for a supervisor’s unlawful harassment when the supervisor has empowered the employee with the ability to take tangible action against the victim such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or the ability to significantly alter the employee’s benefits.
In light of this decision, many attorneys are advising their clients to narrow the scope of their exposure by redefining employee responsibilities such that only key employees have the ability to take tangible employment action. Ultimately, whether an employer can artificially craft their legal exposure under Title VII will be an issue for the courts to resolve.
Washington employers have to be mindful that while they are required to adhere to Title VII, they must also comply with the Washington Law Against Discrimination (WLAD). Although there are similarities between the WLAD and Title VII, Washington employers must recognize that the WLAD is architecturally different from Title VII. Standards for imposing vicarious liability under the WLAD do not speak in terms of “supervisors” but instead refer to managers, corporate officers, and owners. The Washington statute has been liberally interpreted by state courts and, in general, affords greater protection to employees than they would receive under Title VII. As a result, Washington employers should not lull themselves into a false sense of security in light of the Vance vs Ball State University decision.
Is Vance an important decision? Certainly. Will the Vance vs Ball State University decision significantly alter the way you conduct business in Washington? No. At the end of the day, employers need to take issues of harassment and discrimination head on and with an approach that employs a strong dose of common sense. This problem will not go away, so employers must be vigilant. To do so employers should consider:
Job descriptions for every position that clearly identifies the authority granted to the employee, particularly for those who are empowered to take “tangible employment action”;
Handbooks with clear and understandable policies, written in plain English, setting forth protections against harassment and discrimination, as well as, protections against retaliation for those individuals who oppose harassment or discrimination;
Management should be trained, not only on how to recognize potential issues of harassment or discrimination, but also, to be sensitive to verbal cues from employees that may be indicative of workplace harassment. To be effective, the manager needs to have an understanding of how line employees perceive the reporting process and why they may feel management cannot be trusted; and
Employees should be trained on the manner in which the claims of harassment or discrimination should be reported, the manner in which they are handled once they come to the attention of management, and the protections afforded them against retaliation.
Although the above will provide you with a good starting point to avoid claims, none of this works unless your company follows its policies and procedures. If you don’t, they are of no value. More importantly, there must be a change in the culture of your organization. Companies that value their employees practice what they preach from the top down. In other words, if an action is inappropriate on the shop floor it is also inappropriate in the corporate offices. These companies understand that employees work best and are more loyal when they feel that management truly embraces the zero-tolerance policies on harassment, discrimination or retaliation. Your employees understand the difference between a company that talks the talk and a company that walks the walk. It may be time for a candid appraisal of how your company treats its most valuable commodity; its workforce. Do you talk the talk AND walk the walk? What’s your answer?
Till next week,