On June 24th, the U.S. Supreme Court issued a decision that clarified the definition of “supervisor” in Title VII workplace harassment cases. How the U.S. Supreme Court’s decision will impact California employers remains to be seen. California’s civil rights statute, the Fair Employment and Housing Act [FEHA], relies upon a different definition of a “supervisor” in workplace harassment cases.
Under Title VII, the federal anti-discrimination law, an employer’s liability for workplace harassment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions, i.e., if the employer knew and should have known of harassing conduct and failed to take corrective action. However, in harassment cases where the harasser is a “supervisor,” different rules apply.
In Vance, the Supreme Court held that an employer will be strictly liable for the harassing conduct of a “supervisor” only if that supervisor had the authority to take tangible adverse employment action against the subordinate employee that creates a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. If no tangible adverse employment action was taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.
In California a “Supervisor” is More Broadly Defined
In California, under the FEHA, a “supervisor” is more broadly defined. Employers can be held strictly liable for the harassing conduct of a “supervisor” if that “supervisor” had the discretion and authority to effect the same tangible adverse employment actions mentioned above, or to“effectively recommend these actions, or to act on grievances of other employees or effectively recommend action on grievances, or todirect daily work activities.”
Within days of U.S. Supreme Court’s decision in Vance, the Judicial Council of California approved supplemental and revised jury instructions which clarified FEHA’s definition of a “supervisor,” as described in the paragraph above. Even though California courts regularly look to federal precedent to interpret our statutes, it remains to be seen how, or if, California courts will apply the narrower Vance definition of “supervisor” to FEHA harassment claims.
Resolution of these kinds of complex employment matters require the assistance of competent legal counsel who have a thorough understanding of state and federal employment laws so that we can determine how they interact and impact different employers. Employers faced with any harassment, discrimination, and retaliation claims should have skilled employment attorneys evaluate the unique set of facts and resolve the complex legal issues at play in each employment dispute.
Finkel Law Group, with offices in San Francisco and Walnut Creek, has a thriving employment law practice that continues to advise employers on a variety of legal issues. If you need intelligent, insightful, conscientious and cost-effective legal counsel to assist you with any employment matter, please contact us at (415) 252-9600 or info@finkellawgroup.com to speak with one of our attorneys about your deal.