Federal bill to reverse ‘employer-friendly’ Supreme Court decision

Many companies breathed a sigh of relief when the Vance decision lifted a burden off HR’s back as far as liability for harassment. Now, federal politicians want to turn that around

A bill introduced to the Senate this month could make the legal web for employers even more complicated in regards to harassment.

When a 5-4 Supreme Court majority handed down its Vance v. Ball State University decision, it ruled that employers only have the obligation to prevent and remedy supervisor harassment when that supervisor has the power to hire, fire or take other tangible employment actions against the victim. The decision caused uproar amongst workers’ advocacy groups, since it meant that employers had no heightened obligations to protect employees from supervisors who did not have the power to hire or fire, but did direct their daily activity – a description typical of lower-level supervisors, particularly in low-wage jobs.

Now, the Fair Employment Protection Act has been proposed to legislatively reverse the court’s decision. If passed, it will amend federal nondiscrimination laws to protect employees from supervisor harassment – including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act. It will also specify that employers can be held vicariously liable for harassment by those with the authority to direct a victim employee’s daily activities.

“The Vance decision made low wage workers more vulnerable than ever to harassment and intimidation from management,” says Nancy Zirkin, executive vice president of The Leadership Conference on Civil and Human Rights. “By redefining ‘supervisor’ to exclude the managers that interact with workers on a day-to-day basis, the Supreme Court has given corporations and middle management a free pass to skirt liability for abusing employees and lowered penalties for when they’re found guilty.”

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