It has always been an accepted aspect of management wisdom, to consider a business to be liable for discrimination charges when a supervisor in the organization violates the guidelines of the Title VII of the Civil Rights Act which prohibits employment discrimination based on race, color, religion, sex and national origin. Under these protections, an employee could hold an employer liable for meting out disparate treatment to them; or for creating an adverse impact on a particular protected class; or for failing to make reasonable accommodation to an employee’s religious observance and practice; or for retaliation against an employee who filed charges of discrimination against them. Now, a business may escape culpability in cases where someone in a non-supervisory position harasses a co-worker or if a victim of any discriminatory act cannot prove that it was solely retaliatory in nature!
Recent Supreme Court decisions have corralled Title VII violations, making it easier for businesses to avoid charges of discrimination and retaliation, and much harder for workers to sue them. The Supreme Court held that:
The court stated that, if congress feels that the protections offered by Title VII are being limited by this action, it could revise them accordingly. This approach is intended to reduce the number of frivolous lawsuits which are brought in by disgruntled persons who believe they suffer workplace harassment from colleagues with little managerial authority. Many others feel that the realities of workplace harassment are missed by the court and these judgments deprive the harassed of their right to an effective remedy. While employers walk free, the victims are left struggling to prove that they were harassed, discriminated and retaliated against.
Day-to-day workplace practices and scenarios need to be reviewed to determine potential evidence of workplace hostility or harassment. Companies must establish and communicate standards for the work environment that address what has been described as a sliding scale of negligence:
But then, in every case, arguments abound on both sides!
Does anyone who supervises a worker’s daily work duties and activities qualify as a supervisor? A lower court which dismissed Vance’s case opined that they do not! The court refused to consider the supervisor named in the case as a supervisor by applying a rigid and narrow definition for supervisor which included the ability to hire, fire, demote, promote, transfer or discipline subordinates as a pre-requisite. In other such instances, other appeal courts and the EEOC have held that the day-to-day oversight offers adequate ground to result in liability. The Supreme Court has been requested to review and reverse this decision.
Maintaining that the alleged harasser is a co-worker or that the discriminatory act was not retaliatory will definitely offer great relief to any employer; as the threat of liability is significantly minimized if not completely removed. The U.S. Chamber of Commerce and other organizations have filed amicus curiae brief in the matter. They have requested the court to review this case, keeping in mind that many employers go to great lengths to ensure compliance with the Title VII of the Civil Rights Act. On the other hand, many more employers need to be incentivized to screen, train and monitor employees, preventing even the possibility of their triggering any liability issues.
Implications for the Future
The ability of a supervisor to impose demands of quid-pro-quo arrangements on a worker using the hire-fire, promote-demote powers has always been a source of employer liability. This more narrow definition of a supervisor will decide the amount of protection courts will afford ‘victims’ of harassment and discrimination in the future. This will also carry implications for temporary workers who are hired by a staffing agency but supervised by a client, at work. Let us also look at the specific protections afforded to temporary workers, by Title VII in our next post.
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