I have heard a lot of discussion about the Supreme Court’s ruling this term in Vance v. Ball State, and the scope of employer liability for harassment. But what does this change for an employer? Nothing. Employers are still liable for discrimination by supervisors — those individuals who have the authority to take tangible employment actions (e.g., hiring, firing, promoting, etc.) against the alleged victim. If there is no tangible employment action, the Ellerth and Faragher affirmative defenses are still available. And – no surprise here – an employer is still generally liable for the acts of the victim’s co-workers if it is negligent in permitting the acts to occur. If Vance v. Ball State had extended greater liability for the actions of co-workers, it would have warranted more discussion as it would have been a greater departure from established precedent (in my view). However, the reality of it is that a company needs to consider taking the exact same actions it would have taken before the Supreme Court’s ruling: have proper policies in place discussing the prohibition on discrimination and harassment, identify the reporting procedure, discuss the investigation process, and include a non-retaliation provision for those that report discrimination or harassment or those who assist in such investigations; disseminate the policies and take steps to see they are actually followed in practice; train supervisors; and take appropriate action based upon complaints or information the company learns as a result of an investigation.
** The drawing is by Arthur Lien of the line outside the SCOTUS the morning the decision was published.