Jottings By An Employer's Lawyer

Monday, June 24, 2013

Supreme Court Adopts Narrow Definition of Supervisor for Harassment Law

Justice Alito writing for the court succinctly sets out today's holding in Vance v. Ball State (S.Ct. 6/24/13):
We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee 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 decision causing a significant change in benefits.” Ellerth, supra, at 761. We reject the nebulous definition of a “supervisor” advocated in the EEOC Guidance and substantially adopted by several courts of appeals.
For employers, at least in circuits that had not adopted the "nebulous" definition, this falls into the dodging a bullet category, and for those circuits which had adopted such a rule (Justice Alito specifically mentions the 2nd and 4th Circuits)  it is a very positive day.

Given the other opinions coming in the next few days, it is unlikely Vance v. Ball State will get much attention outside the labor and employment law bar. However, Justice Alito's opinion is one that is going to be worthy of substantial attention as it covers a number of important topics ranging from the importance of simplified jury instructions, the importance of summary judgment in certain contexts, the unique nature of the NLRA given its subject matter of regulating differences between labor and management not to mention the explication of Farragher and Ellerth which ultimately is the basis on which the case is decided.

Justice Ginsburg writes the dissent and once again looks to Congress as the way out:
The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.
That's the same song that is being sung about the Italian Colors Restaurant decision, and my view is the same. Unlikely to happen any time soon.

I am curious how this will affect labor law and the NLRA. I see its affect on employment law, but not the connection to the NLRA.
My mention of the NLRA was probably not clear. This decision won't impact the NLRA. However, Justice Alito has a long foot note (7) discussing why the definition of supervisor under the NLRA is not really applicable to the decision. Hs opinion touches on quite a broad spectrum of labor and employment issues and that was just one of them.
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