Analysis: Judge closes door on employee harassment lawsuits

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CHICAGO -- Vance v. Ball State University, decided last week by the Supreme Court, concerns an employer's liability, under federal civil rights law, for sexual or racial harassment of one employee by another. If the harasser is just a co-worker of the victim, the employer is liable for the harassment only if the employer's own negligence contributed to it. But if the harasser is a supervisor, the employer may be liable for the harassment even if it has done nothing negligent.

Yet what, for these purposes, is a "supervisory" employee?

The majority opinion in Vance, which is by Justice Samuel Alito, answers that to count as the act of a supervisor, harassment has to culminate "in a tangible employment action" -- that is, "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." Earlier decisions had left open the door to a broader employer liability. Vance closes it.

Justice Ruth Bader Ginsburg's dissenting opinion (joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan) advocates unsuccessfully a broader definition of a "supervisor," as one who "must wield authority of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment." That is, his authority, conferred by the employer, must increase his ability or propensity to harass another employee.

The main reason given in the majority opinion for the narrower definition is that the broader one, embraced by the dissenters, is vague. Actually both definitions are vague. Justice Alito's use of the term "such as" leaves the meaning of "tangible employment action" open-ended. Is either his definition or Justice Ginsburg's helpful?

I think not.

Cases of employer liability for workplace harassment of one employee by another can be handled satisfactorily without attempts at classifying the harasser -- attempts further confused by dividing supervisors into those whose supervisory responsibilities make them "supervisors" for purposes of their employer's liability and those whose responsibilities fall short: They are called supervisors and have supervisory duties, but not the right duties.

I noticed in a footnote in the dissent a reference to a case that seemed familiar. I thought I might have written it, and it turned out I had. It's called Doe v. Oberweis Dairy, it was decided in 2006, and the dissent quotes the following passage from it: "The difficulty of classification in this case arises from the fact that Nayman, the shift supervisor, [had] supervisory responsibility in the sense of authority to direct [work], and he was even authorized to issue disciplinary write-ups, but he had no authority to fire them. He was either an elevated coworker or a diminished supervisor." I didn't think it necessary to choose between those classifications.

The plaintiff in Doe was a 16-year-old high school student who had been hired as a part-time ice cream scooper at the defendant's ice cream parlor. Her suit alleged that Nayman, her 25-year-old shift supervisor, had harassed her sexually, culminating in having sex with her, for which he was eventually imprisoned because she was below the age of consent.

My opinion for the three-judge panel that decided the case states that "if forced to choose between the two pigeonholes, we would be inclined to call Nayman a supervisor ... because he was often the only supervisory employee present in the ice cream parlor. He was thus in charge." But, we added, "there is no compelling need to make a dichotomous choice. ... Binary distinctions are not the only ones that judges and juries are capable of making."

The important thing was to impose on an employer "a higher duty of care to protect its employees against those employees whom the employer has armed with authority, even if it is less than the authority that triggers the employer's strict liability. ... The fact that Nayman was often the only supervisor in the ice cream parlor and that the workers he was supervising were for the most part inexperienced teenagers [created] a risk of harassment by him that required his employer to take greater care than if Nayman had been one of the teen-age scoopers."

Our opinion suggested a sliding scale (now superseded by Vance), whereby the employer's liability would depend on the contextually significant practical authority that the employer conferred on the employee. The plaintiff's youth relative to Nayman, the fact that often he was the only supervisor present in the ice cream parlor, the absence of other adults -- these were the facts that indicated irresponsible employment practices by the company. Nayman's lack of authority to fire or promote the girl, or cut or raise her wages, was unimportant.

Although Justice Alito, in Vance, goes on at length about the danger of a jury becoming confused by a vague standard, in fact this is the kind of case that a jury would have little difficulty deciding sensibly, because it involves a situation well within the capacity of virtually any adult to understand and evaluate.

The dueling opinions in Vance confirm my view that the Supreme Court's opinions are too long. They are too long mainly because their authors spend a great deal of time trying to squeeze juice out of previous opinions that deal with substantially different employment situations. Most judges feel naked if they can't tie a case back to some precedent, or some other bit of legal text, yet often they evince little interest in facts that may make all the difference. Vance, unlike the plaintiff in Doe v. Oberweis Dairy, had a weak case, as acknowledged by the dissent. This made the case a poor vehicle for an attempt to determine the scope of a company's liability for harassment by its supervisory employees.

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Judge Posner, of the U.S. Court of Appeals for the 7th Circuit and an appointee of President Ronald Reagan, is also a senior lecturer at the University of Chicago Law School. This piece originally appeared in Slate.


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