DISCRIMINATION, RETALIATION AND HARASSMENT; HUMAN RESOURCES/ EMPLOYER MATTERS

Late last month, the Supreme Court considered whether and when a co-worker can be deemed a supervisor for purposes of evaluating if the employer is strictly liable for that persons harassment of another employee.

As we reported in the July 9, 2012 edition of Labor & Employment Law Perspectives, the Supreme Court agreed to hear Vance v. Ball State University to address the critical question of who qualifies as a supervisor. The Justices debated the merits of upholding the clear standard applied by the 7th Circuit Appeals Court or of adopting the case-by-case standard advocated by the EEOC or a new hybrid standard suggested by Justice Kennedy. They also asked questions indicating that the Justices may believe that the facts in the case are not sufficient to decide the issue in the first place. To top it all off, Ball State’s counsel did not even argue in favor of the standard applied by the appellate court to rule in his client’s favor. The issue is critical to employers because they can be held strictly liable for harassment by a supervisor. If the alleged harasser is a co-worker, however, the employer will be liable for unlawful harassment of another employee if the employer was negligent either in discovering the harassment or in failing to investigate or craft an appropriate remedy to prevent it.

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