Supreme Court Eases Employer Sexual Harassment Liability Even More

In two 1998 cases, the United States Supreme Court adopted new rules of employer liability in sexual harassment cases. The cases, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998), created what became known as the “Faragher-Ellerth defense,” and have shielded employers from liability in many harassment lawsuits over the years.

Under the rule, an employer is not liable for sexual harassment engaged in by supervisors if: (1) The employee was not the victim of any “tangible adverse employment action”; (2) The employer exercised reasonable care to prevent and promptly correct the harassing behavior, for example, through enacting a harassment policy; and (3) The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm (for example, by not reporting harassment pursuant to a policy).

Under Faragher-Ellerth, if the harasser is a co-worker and not a supervisor, the victim of the harassment has a higher burden of proof, and must show that the employer acted negligently in failing to prevent and remedy harassment. In a case decided on June 24, 2013, a Supreme Court divided on familiar 5-4 lines expanded Faragher-Ellerth defense by narrowly defining who is a “supervisor,” with the result that more victims of harassment will have to meet the higher negligence burden of proof.

In an opinion written by Justice Samuel Alito, the Court held 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, fi ring, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” The Court rejected long-standing guidance from the EEOC, which since 1999 has taken the position that ties supervisory status to the ability to exercise significant direction over another’s work. The Court criticized the EEOC’s standards, which had been adopted by several federal courts of appeals, as “nebulous,” “open-ended,” and a “study in ambiguity.”

Parrying a vigorous dissenting opinion written by Justice Ruth Bader Ginsburg, the Court observed that “contrary to the dissent’s suggestions, this approach will not leave employees unprotected against harassment by co-workers who possess the authority to inflict psychological injury by assigning unpleasant tasks or by altering the work environment in objectionable ways. In such cases, the victims will be able to prevail simply by showing that the employer was negligent in permitting this harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent.”

The dissenting judges wrote that “the Court today strikes from the supervisory category employees who control the day-to-day schedules and assignments of others, confining the category to those formally empowered to take tangible employment actions. The limitation the Court decrees diminishes the force of Faragher and Ellerth, ignores the conditions under which members of the work force labor, and disserves the objec tive of Title VII to prevent discrimination from infecting the Nation’s workplaces.”

Vance v. Ball State University, No. 11-556 (June 24, 2013).