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Under federal and California law, employer liability for workplace harassment can depend entirely on the legal definition of a “supervisor.” The U.S.
Under federal and California law, employer liability for workplace harassment can depend entirely on the legal definition of a “supervisor.” The U.S. Supreme Court has recently clarified that definition under Title VII of the Civil Rights Act of 1964 in Vance v. Ball State University (June 24, 2013).
Narrow Definition for “Supervisor” under Federal Law: Indiana’s BSU employed catering assistant Maetta Vance, an African-American female. She sued employer BSU alleging her white female supervisor Saundra Davis created a racially hostile work environment in violation of Title VII. That federal law makes it an unlawful employment practice for an employer to discriminate – and by extension, to harass – a worker because of his/her race, color, religion, sex, or national origin. Vance alleged Davis would glare at her, slam pots and pans in her vicinity and “intimidate” her. She claimed Davis would often give her “weird” looks and would stand there with her catering cart “smiling.”
The case focused whether BSU could be held automatically (vicariously) liable even if BSU had had no notice of Davis’s actions and thus no opportunity to investigate and halt any unlawful conduct. If Davis had been Vance’s supervisor for purposes of Title VII, then BSU could be vicariously liable for such harassment. If, however, Davis was Vance’s co-worker, then BSU would only be liable if it negligently controlled working conditions (e.g., if the university had some notice of the alleged hostile environment and yet had done nothing effective to stop it).
As the lower court held BSU had responded reasonably to the incidents of which it was aware, BSU’s liability in this case depended solely on whether Davis was a supervisor or merely a co-worker.
Before this Vance decision, the federal courts defined whether an alleged harasser was a “supervisor” under Title VII in either of two ways. Some courts held an employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the alleged victim. Other courts adhered to the Equal Employment Opportunity Commission’s (EEOC) more open-ended approach which ties supervisor status to the ability to exercise “significant discretion” over the alleged victim’s daily work.
BSU argued it could not be held vicariously liable for the alleged harassment because Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. Vance argued Davis was a supervisor because Davis had the authority to control Vance’s daily activities and evaluate her performance, thus falling within the EEOC’s open-ended definition of a supervisor.
The U.S. Supreme Court agreed with BSU in holding an employee is a “supervisor” under Title VII only if the employer empowers that person to take “tangible employment actions” against the other, e.g., authority to hire, fire, demote, promote, transfer, or discipline. Thus, BSU was not liable with respect to Davis’ alleged conduct.
California’s Broader Definition of Supervisor is Likely Unaffected: Although this is an important decision affecting workplace harassment cases brought under Title VII, it will likely have little to no impact on employment discrimination cases brought under California’s Fair Employment and Housing Act (FEHA).
FEHA specifically defines “supervisor” more broadly as any person having the authority to hire, transfer, discharge other employees, or the responsibility to direct them, adjust their grievances, or effective to effectively recommend tangible employment actions. Thus, under FEHA, a person such as Davis tasked with the responsibility to direct an employee’s daily duties (i.e. a team leader) is a “supervisor” even if lacking direct authority to hire, fire, promote or transfer the employee.
Minimally, all American employers no matter where located should train their supervisors to recognize and prevent harassing conduct and closely monitor co-worker interactions to ensure a safe, harassment-free working environment.
For help to employers on how to structure, administer or enforce proper policies and handbooks to avoid expensive lawsuits, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.
San Diego Mayor Bob Filner resigns todayin the wake of sexual harassment allegations from some 18 women over recent weeks. These include aformer communications director, his former deputy campaign manager, a retired admiral, the president of the San Diego Port Tenants Association, a dean at San Diego State University, the director of government and military education at San Diego City College, a school psychologist, and a vocational nurse.The allegations includegroping, headlocks, choke holds, b
San Diego Mayor Bob Filner resigns today in the wake of sexual harassment allegations from some 18 women over recent weeks. These include a former communications director, his former deputy campaign manager, a retired admiral, the president of the San Diego Port Tenants Association, a dean at San Diego State University, the director of government and military education at San Diego City College, a school psychologist, and a vocational nurse. The allegations include groping, headlocks, choke holds, blocking women from leaving his office, using visits from lobbyists to bargain for sexual favors, and preying on women at an event for sexually abused military personnel.
Michelle Taylor, the licensed vocational nurse, has been one of the most vocal accusers. At an August 6, 2013 news conference, flanked by her attorney Gloria Allred, Ms. Tyler claimed she met with the mayor on June 11, 2013 for his help with the Veterans Administration for a disabled former Marine injured while serving in Iraq. According to Ms. Tyler, Mayor Filner agreed to help so long as she agreed to have sex with him in return. She recalled the mayor began rubbing her arm while stating, “Relax, you are incredible. I will help your veteran. I want you to go out to dinner with me and spend time with me.” He allegedly asked if she was married and announced he would really like to be seen in public with her. Ms. Tyler asserted Mayor Filner also asked if he could call her and stated, “If we were not here in my office I would like to kiss you.”
At that conference, Ms. Allred stated, “Many people ask for help from their elected officials. To use his power as the Mayor of the City of San Diego to satisfy his sexual needs is clearly improper and should not be tolerated. This case is extremely serious as it involves conduct by Mayor Filner in the performance of his duties that clearly shows his abuse of power and his penchant to use his office to satisfy his sexual needs.”
It is illegal in California for a workplace supervisor to request sexual favors in exchange for job security, benefits or advancement (“quid pro quo,” Latin for “this for that” or “something for something”) Examples are a supervisor giving an employee benefits conditioned on sexual favors, offering to promote a subordinate if he/she will date the supervisor, or promising a pay raise in exchange for sex, threatening to fire or demote an individual if she or he refuses to sleep with the boss.
A California employer is strictly liable for its supervisor’s or agent’s quid pro quo damages an employee incurs as a result of a supervisor or agent’s quid pro quo sexual harassment. California employers are also required to take all reasonable steps to prevent any kind of harassment from occurring, including a written policies and supervisor and worker instruction. California Government Code 12950.1 requires any employer with 50 or more total employees and/or associated independent contractors to formally train its supervisors within six months of hiring or promotion and then every other year on sexual harassment prevention, investigation and resolution.
For employer assistance on harassment prevention and handling issues, including provision of the supervisor training required under Government Code 12950.1, contact our firm’s attorneys Tim Bowles or Cindy Bamforth.
Related Articles:
“Embarrassing, Disruptive and Expensive to Resolve, Harassment in the Workplace is Illegal”
“Employer Liability for Workplace Harassment”
“Promoting Workplace Productivity with a Sound Policy Handbook and Forms”
“Fair and Balanced – Harassment and Discrimination Workplace Investigations”
“When It’s Time to Contact an Employment Lawyer”
June 11, 2013
San Diego Mayor Bob Filner resigns todayin the wake of sexual harassment allegations from some 18 women over recent weeks. These include aformer communications director, his former deputy campaign manager, a retired admiral, the president of the San Diego Port Tenants Association, a dean at San Diego State University, the director of government and military education at San Diego City College, a school psychologist, and a vocational nurse.The allegations includegroping, headlocks, choke holds, b
San Diego Mayor Bob Filner resigns today in the wake of sexual harassment allegations from some 18 women over recent weeks. These include a former communications director, his former deputy campaign manager, a retired admiral, the president of the San Diego Port Tenants Association, a dean at San Diego State University, the director of government and military education at San Diego City College, a school psychologist, and a vocational nurse. The allegations include groping, headlocks, choke holds, blocking women from leaving his office, using visits from lobbyists to bargain for sexual favors, and preying on women at an event for sexually abused military personnel.
Michelle Taylor, the licensed vocational nurse, has been one of the most vocal accusers. At an August 6, 2013 news conference, flanked by her attorney Gloria Allred, Ms. Tyler claimed she met with the mayor on June 11, 2013 for his help with the Veterans Administration for a disabled former Marine injured while serving in Iraq. According to Ms. Tyler, Mayor Filner agreed to help so long as she agreed to have sex with him in return. She recalled the mayor began rubbing her arm while stating, “Relax, you are incredible. I will help your veteran. I want you to go out to dinner with me and spend time with me.” He allegedly asked if she was married and announced he would really like to be seen in public with her. Ms. Tyler asserted Mayor Filner also asked if he could call her and stated, “If we were not here in my office I would like to kiss you.”
At that conference, Ms. Allred stated, “Many people ask for help from their elected officials. To use his power as the Mayor of the City of San Diego to satisfy his sexual needs is clearly improper and should not be tolerated. This case is extremely serious as it involves conduct by Mayor Filner in the performance of his duties that clearly shows his abuse of power and his penchant to use his office to satisfy his sexual needs.”
It is illegal in California for a workplace supervisor to request sexual favors in exchange for job security, benefits or advancement (“quid pro quo,” Latin for “this for that” or “something for something”) Examples are a supervisor giving an employee benefits conditioned on sexual favors, offering to promote a subordinate if he/she will date the supervisor, or promising a pay raise in exchange for sex, threatening to fire or demote an individual if she or he refuses to sleep with the boss.
A California employer is strictly liable for its supervisor’s or agent’s quid pro quo damages an employee incurs as a result of a supervisor or agent’s quid pro quo sexual harassment. California employers are also required to take all reasonable steps to prevent any kind of harassment from occurring, including a written policies and supervisor and worker instruction. California Government Code 12950.1 requires any employer with 50 or more total employees and/or associated independent contractors to formally train its supervisors within six months of hiring or promotion and then every other year on sexual harassment prevention, investigation and resolution.
For employer assistance on harassment prevention and handling issues, including provision of the supervisor training required under Government Code 12950.1, contact our firm’s attorneys Tim Bowles or Cindy Bamforth.
Related Articles:
“Embarrassing, Disruptive and Expensive to Resolve, Harassment in the Workplace is Illegal”
“Employer Liability for Workplace Harassment”
“Promoting Workplace Productivity with a Sound Policy Handbook and Forms”
“Fair and Balanced – Harassment and Discrimination Workplace Investigations”
“When It’s Time to Contact an Employment Lawyer”
June 11, 2013
The Civil Rights Act of 1964 is America’s foremost protection against employment discrimination (also known as “ Title VII ”).
The Civil Rights Act of 1964 is America’s foremost protection against employment discrimination (also known as “Title VII”). Yet, for more than five decades, courts have applied this law to preserve such “equal rights” only for some, and decidedly not for homosexual or transgender persons.
No longer. In a decision which its conservative author acknowledged as “unexpected,” the U.S. Supreme Court has ruled that an employer who fires an individual for being gay or transgender violates Title VII’s prohibition against sex discrimination. Bostock v. Clayton County, Georgia (June 15, 2020).
Title VII makes it “unlawful ... for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual ... because of such individual’s race, color, religion, sex, or national origin.”
Justice Gorsuch, joined by five other members of the court, found that discrimination against a person for his or her sexual orientation or sexual identity was by definition discrimination because of that person’s sex.
Justice Gorsuch reasoned: “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”
Until this decision, it was possible for private employers in some 25 states to terminate a gay or transgender person for their sexual orientation and/or identity alone. Nationwide, it had also been possible for an employer to argue that even if sexual orientation or identity had been a factor in a worker’s termination, there should be no liability as he or she would have been fired for other reasons in any event (so-called “mixed motive” cases).
Again, no more. An employer violates Title VII when it intentionally fires an individual employee based even in part on (i.e., “because of”) sex (and thus, even in part, on his/her sexual orientation or identity). “It makes no difference if other factors besides the employee’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group.”
This profound expansion of Title VII’s principles must also apply to every other individual characteristic that law protects against discrimination: race, color, religion and national origin.
The decision thus calls for employers to take close stock of their policies, practices and training programs to ensure that workplace-protected characteristics are never a factor in any employment decision. Personnel management, whether in hiring, advancement, compensation, discipline, termination or any other major aspect of employment, must be grounded in worker ability, qualification and productivity.
See also:
Please contact Tim Bowles, Cindy Bamforth or Helena Kobrin for more information.
2013 brings more changes on the notices that must be posted and the pamphlets that must be distributed in California workplaces. These include:
2013 brings more changes on the notices that must be posted and the pamphlets that must be distributed in California workplaces. These include:
– Pregnancy Leave and Family Leave Notices: Any California employer with five or more persons on payroll is subject to the pregnancy disability leave (PDL) law . Any California employer with 50 or more on payroll must comply with the California Family Rights Act (CFRA). Effective December 30, 2012, employers must post updated notices on employee rights and responsibilities under the PDL (Notice A) and the CFRA (Notice B).
– Non-Discrimination and Non-Harassment Notices, Pamphlets: California’s Fair Employment and Housing Act (FEHA) prohibits workplace discrimination on the basis of “sex,” previously defined to include gender, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth. The Legislature expanded the definition in 2012 to include breastfeeding and related medical conditions. As a result, employers must post new a version of the workplace non-discrimination notice.
– Anti-Human Trafficking Postings: As mentioned in “New Labor Laws for 2013: Slavery and Human Trafficking Notice Required for Some Businesses,” certain types of businesses will need to post a notice with specific information about slavery and human trafficking. This law was effective January 1, 2013. The California Department of Justice is developing a model notice, due by April 1, 2013.
These are just the highlights. California and the federal government require employers to post and otherwise provide their workers with a range of printed statements and information on workplace laws and required procedures, available online from such agencies as the California Department of Fair Employment and Housing (DFEH), California’s Employment Development Department (EDD), the California Department of Industrial Relations (worker’s compensation), the California Industrial Welfare Commission (IWC) (wage orders), and the U.S. Department of Labor.
Businesses may purchase a wide-ranging California and federal employment notices poster for 2013 through the California Chamber of Commerce website.
Our firm’s attorneys Tim Bowles or Cindy Bamforth can assist you in implementing or revising workplace policies as appropriate to ensure compliance with these requirements.
Effective January 1, 2013, a new California law,Civil Code section 52.6, requires specified businesses and other establishments to conspicuously post a notice guiding the public to report suspected slavery and human trafficking. The places affected include:
Effective January 1, 2013, a new California law, Civil Code section 52.6, requires specified businesses and other establishments to conspicuously post a notice guiding the public to report suspected slavery and human trafficking. The places affected include:
– Restaurants
– Urgent care and emergency room facilities
– Privately operated job recruitment centers
– Commercial airports, rail stations, bus stations and truck stops
– “Adult or sexually oriented businesses” (as defined by Penal Code section 318.5)
– Businesses offering “massage or bodywork services” from uncertified message therapists
– Farm labor contractors
The notice must be at least 8.5” x 11” with 16-point font and state:
“If you or someone you know is being forced to engage in any activity and cannot leave—whether it is commercial sex, housework, farm work, construction, factory, retail, or restaurant work, or any other activity—call the National Human Trafficking Resource Center at 1-888-373-7888 or the California Coalition to Abolish Slavery and Trafficking (CAST) at 1-888-KEY-2-FRE(EDOM) or 1-888-539-2373 to access help and services.
Victims of slavery and human trafficking are protected under United States and California law.
The hotlines are:
:
The notice must be in English, Spanish and at least one other language that is “the most widely spoken” in the county where the establishment is located.
The California Department of Justice will develop and make a model notice available online by April 1, 2013.
The state is authorized to fine any business or other establishment that remains in non-compliance 30 days after a written warning ($500 first offense, $1,000 each subsequent offense).
Effective January 1, 2013, a new California law,Civil Code section 52.6, requires specified businesses and other establishments to conspicuously post a notice guiding the public to report suspected slavery and human trafficking. The places affected include:
Effective January 1, 2013, a new California law, Civil Code section 52.6, requires specified businesses and other establishments to conspicuously post a notice guiding the public to report suspected slavery and human trafficking. The places affected include:
– Restaurants
– Urgent care and emergency room facilities
– Privately operated job recruitment centers
– Commercial airports, rail stations, bus stations and truck stops
– “Adult or sexually oriented businesses” (as defined by Penal Code section 318.5)
– Businesses offering “massage or bodywork services” from uncertified message therapists
– Farm labor contractors
The notice must be at least 8.5” x 11” with 16-point font and state:
“If you or someone you know is being forced to engage in any activity and cannot leave—whether it is commercial sex, housework, farm work, construction, factory, retail, or restaurant work, or any other activity—call the National Human Trafficking Resource Center at 1-888-373-7888 or the California Coalition to Abolish Slavery and Trafficking (CAST) at 1-888-KEY-2-FRE(EDOM) or 1-888-539-2373 to access help and services.
Victims of slavery and human trafficking are protected under United States and California law.
The hotlines are:
:
The notice must be in English, Spanish and at least one other language that is “the most widely spoken” in the county where the establishment is located.
The California Department of Justice will develop and make a model notice available online by April 1, 2013.
The state is authorized to fine any business or other establishment that remains in non-compliance 30 days after a written warning ($500 first offense, $1,000 each subsequent offense).
2013 brings more changes on the notices that must be posted and the pamphlets that must be distributed in California workplaces. These include:
2013 brings more changes on the notices that must be posted and the pamphlets that must be distributed in California workplaces. These include:
– Pregnancy Leave and Family Leave Notices: Any California employer with five or more persons on payroll is subject to the pregnancy disability leave (PDL) law . Any California employer with 50 or more on payroll must comply with the California Family Rights Act (CFRA). Effective December 30, 2012, employers must post updated notices on employee rights and responsibilities under the PDL (Notice A) and the CFRA (Notice B).
– Non-Discrimination and Non-Harassment Notices, Pamphlets: California’s Fair Employment and Housing Act (FEHA) prohibits workplace discrimination on the basis of “sex,” previously defined to include gender, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth. The Legislature expanded the definition in 2012 to include breastfeeding and related medical conditions. As a result, employers must post new a version of the workplace non-discrimination notice.
– Anti-Human Trafficking Postings: As mentioned in “New Labor Laws for 2013: Slavery and Human Trafficking Notice Required for Some Businesses,” certain types of businesses will need to post a notice with specific information about slavery and human trafficking. This law was effective January 1, 2013. The California Department of Justice is developing a model notice, due by April 1, 2013.
These are just the highlights. California and the federal government require employers to post and otherwise provide their workers with a range of printed statements and information on workplace laws and required procedures, available online from such agencies as the California Department of Fair Employment and Housing (DFEH), California’s Employment Development Department (EDD), the California Department of Industrial Relations (worker’s compensation), the California Industrial Welfare Commission (IWC) (wage orders), and the U.S. Department of Labor.
Businesses may purchase a wide-ranging California and federal employment notices poster for 2013 through the California Chamber of Commerce website.
Our firm’s attorneys Tim Bowles or Cindy Bamforth can assist you in implementing or revising workplace policies as appropriate to ensure compliance with these requirements.
Beginning March 8, 2013, employers with 50 or more employees and subject to the federal Family and Medical Leave Act (FMLA) must display anew poster. The change is prompted by new U.S. Department of Labor (DOL) regulations.
Beginning March 8, 2013, employers with 50 or more employees and subject to the federal Family and Medical Leave Act (FMLA) must display a new poster. The change is prompted by new U.S. Department of Labor (DOL) regulations.
This new “Employee Rights and Responsibilities Under the Family and Medical Leave Act” poster is included as “Notice C” on the more comprehensive California Chamber of Commerce “California and Federal Employment Notices” poster.
Along with a summary of FMLA, the new posting provides instructions for filing a complaint under that law. As always, covered businesses must display the poster in a conspicuous place where employees and job applicants can readily view it.
March 8, 2013