The supervisor did it.

Yep, you’ve concluded that he sent unwanted texts to his subordinate telling her she looked “beautiful.”  Maybe even stopped by her hotel room unannounced one night at a conference for a “nightcap”.

While the subordinate’s career does not appear to have been harmed in the legal sense (i.e. there’s no “tangible employment action”), you’ve concluded that there was something “inappropriate” that happened.

(And let’s state the obvious: harm can exist even outside the “tangible employment action” context — that’s an issue for another post.)

So, back the the issue of the day — something “inappropriate” happened; maybe even something that meets the legal definition of “sexual harassment”.

What then?

Firing? Perhaps.

But what if you conclude that a lesser type of sanction is warranted?  Can you do that? If so, what’s the standard?

In cases where there has been no tangible employment action taken, the EEOC has actually set forth in its guidance a whole discussion that says that firing is but one possibility.  What’s important is that the remedial measures should be designed to:

  • Stop the harassment;
  • Correct its effect on the employee; and,
  • Ensure that the harassment does not recur.

The EEOC’s guidance notes that these remedial measures “need not be those that the employee requests or prefers, as long as they are effective.”

Moreover, “in determining disciplinary measures, management should keep in mind that the employer could be found liable if the harassment does not stop. At the same time, management may have concerns that overly punitive measures may subject the employer to claims such as wrongful discharge, and may simply be inappropriate.”

The EEOC suggests that the employer balance the competing concerns and that disciplinary measures should be proportional to the seriousness of the offense.

What does that mean?

If the harassment was minor, the EEOC suggests, such as a small number of “off-color” remarks by an individual with no prior history of similar misconduct, then counseling and an oral warning might be all that is necessary.

On the other hand, if the harassment was severe or persistent, then suspension or discharge may be appropriate.

And importantly, remedial measures also should correct the effects of the harassment. In the EEOC’s words, “such measures should be designed to put the employee in the position s/he would have been in had the misconduct not occurred.”

The EEOC provides various examples of measures to stop the harassment and ensure that it does not recur.  These include:

  • oral or written warning or reprimand;
  • transfer or reassignment;
  • demotion;
  • reduction of wages;
  • suspension;
  • discharge;
  • training or counseling of harasser to ensure that s/he understands why his or her conduct violated the employer’s anti-harassment policy; and
  • monitoring of harasser to ensure that harassment stops.

As for examples of measures to correct the effects of the harassment, these include:

  • restoration of leave taken because of the harassment;
  • expungement of negative evaluation(s) in employee’s personnel file that arose from the harassment;
  • reinstatement;
  • apology by the harasser;
  • monitoring treatment of employee to ensure that s/he is not subjected to retaliation by the harasser or others in the work place because of the complaint; and,
  • correction of any other harm caused by the harassment (e.g., compensation for losses).

How does this apply in the real world?

Jon Hyman of the Ohio Employer’s Law Blog, highlighted a case several years back where the employer didn’t terminate the offending supervisor on the first go around, but rather gave them a last chance.

Unfortunately, the employer didn’t follow through when the supervisor STILL engaged in harassment.  The case, Engel v. Rapid City School District, is worth a read to show how an employer’s reasonableness the first go around, can be used against it when it doesn’t follow through.

The EEOC’s guidance is a helpful guide to employers in navigating these issues.  The employer should look to the particular circumstances of any matter and determine what punishment is appropriate in that particular matter.

Perhaps it will conclude that firing is appropriate.

But if it concludes, based on an analysis of the entirety of the situation, that something less than that is appropriate too, the EEOC’s guidance can be a useful guidepost for that determination.

We’ve been waiting a while for a few U.S. Supreme Court cases to come down that have an impact on employment law.  And the court didn’t disappoint.  They are blockbuster cases when it comes to employment law.

In the first of two decisions this morning, the U.S. Supreme Court released Vance v. Ball State University, a harassment case that has important implications for the scope of sexual harassment cases.  (I previewed this case back in January.)

At issue in the case is was:

Whether the “supervisor” liability rule established by Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

The Court this morning narrowed the definition further:

We hold that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empow­ered by the employer to take tangible employment actions against the victim, and we therefore affirm the judgment of the Seventh Circuit.

In doing so, the court rejected a more expansive definition of supervisor that had been advanced by the EEOC.  Why is this significant? Because employers can be, in essence, strictly liable for the acts of the supervisor.  It does not mean that co-worker harassment cases are dead; only that the employee must show that the employer itself was negligent.

So what is a “tangible employment action”? According to the court, it is to effect 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.”

You can download the decision here.

The decision will have important implications for federal court cases in Connecticut which had been governed by the Second Circuit in the Mack v. Otis case from about a decade ago.  That case had followed the EEOC’s expansive interpretation.

In ruling inVance, the court said that a supervisor is more than just someone who has the ability to “direct another employee’s tasks”.  While that person can create a hostile work environment, it is not enough to establish vicarious liability to the employer.

The case was decided by a 5-4 majority, with the typical ideological fault lines becoming apparent.  In a stirring dissent, Justice Ginsburg found fault with the majority’s logic and she “would follow the EEOC’s Guid ance and hold that the authority to direct an employee’s daily activities establishes supervisory status under Title VII.”

Ultimately, after reflecting on the case for a bit, I’m not sure the case is going to have that big an impact. After all, if there is harassment in the workplace, the distinction is hardly going to save most employers from such claims.  But the decision is clearly an attempt by the court to set some clear parameters for the scope of coverage.  Because of that, we may see more cases decided at the summary judgment phase.

Ok, bear with me for a second.

If your employees want to bring a class action against your company claiming that they should’ve been paid overtime, there are typically two ways to do so: Bring a claim under state law, or bring a claim under federal law (Fair Labor Standards Act).

There’s a big difference: Federal law collective actions are an “opt-in” group — meaning that individual employees need to affirmatively state that they want “in” on the lawsuit. (Many people don’t bother so those classes tend to be smaller.)  State law class actions typically use an “opt-out” procedure (meaning that everyone is IN the class unless they affirmatively state they want “out”).

Recently, lawyers representing employees in these wage-and-hour actions have been bringing “hybrid actions” — asserting BOTH state and federal law claims in one lawsuit.  The Second Circuit (which is the federal appeals court for Connecticut, New York & Vermont) had never blessed those actions.

Until now.

Earlier this week, the Second Circuit in Shariar v. Smith & Wollensky Restaurant Group approved these actions were proper where the facts underlying both claims “form part of the same case or controversy.”

As keenly noted by the  Wage & Hour Litigation Blog, if Defendants now want to object to prosecuting both federal and state claims in the same lawsuit, “the court’s decision clarifies the legal grounds for doing so.  Going forward, defendants will need to demonstrate significant tension between the pursuit of federal and state wage claims in the same lawsuit in order to limit plaintiffs to FLSA claims in federal court.”

For employers, the court’s decision won’t have a significant impact on business. What it will have an impact on, though, is any wage-and-hour litigation that the company may face. This decision makes it easier for employees to bring their claims in federal court (where things might move a little more quickly) while still maintaining the perceived benefits of an opt-out class under state law.


Now that the dust has settled a bit, it’s time to look at the long-term impact of last month’s Supreme Court decision in AT&T v. Concepcion for employment matters.  (For a great analysis of the decision itself, see this SCOTUSblog post.) 

All the analysis that has been coming out seems to suggest that there are two main areas that seem ripe for adoption in the employment arena.  

First, employers may want to use it as a preemptive strike against potential class actions by employees (such as suits challenging the exempt/non-exempt classification).  How? By including a waiver of class claims in employment arbitration agreements. 

Easy enough, right? Not exactly.  Employers will still want to be sure that the arbitration process that they are pushing employees into is procedurally and substantively fair. The best post-AT&T Mobility analysis I’ve seen that discusses this even further has been this excellent post in Lexology.  

But besides being used for current employees, employers may want to consider adding provisions in their settlement agreements of wage & hour class actions as well.  Employers who have been through those suits know that a settlement for past actions typically doesn’t prohibit lawsuits in the future for events that haven’t yet occurred. 

By including a provision that prevents settling class members from starting a class action in the future, the employer buys a bit of protection.  (And for those concerned that such a provision may fall through, the employer could still include a liquidated damages provision if the employee joins the class action.)  

Of course, adopting the Supreme Court’s case isn’t a slam dunk for all employers. For example, by eliminating class actions, is the employer able (or ready) to face numerous individual arbitrations across the country? And is the employer ready to pay costs and attorneys fees as these types of arbitrations may require? 

At the very least, however, all employers should consider discussing the case with their trusted advisor or attorney to determine if an arbitration and class action waiver provision is appropriate.

Time and again, pundits suggest that the U.S. Supreme Court now is among the most conservative in decades and, by extension, pro-business.

If that’s the case, they’re going to be awfully surprised with today’s 8-0 ruling in Staub v. Proctor Hospital (download here) in which the court broadened the methods that an employee can use to prove a discrimination case.

And here’s the kicker: The decision was written by Justice Scalia.

At issue in Staub, is the so-called "Cat’s Paw" theory of discrimination in which the adverse employment action (like a firing) by a "clean" upper-level executive is alleged to have been infected by  a lower-level supervisor who had discriminatory animus.  I’ve previously discussed that theory in prior posts. 

Scalia notes the delicate issues in play, namely whether such influence is a "motivating factor" sufficient to cause an employer to be liable:

The central difficulty in this case is construing the phrase “motivating factor in the employer’s action.” When the company official who makes the decision to take an adverse employment action is personally acting out of hostility to the employee’s membership in or obligation to a uniformed service, a motivating factor obviously exists. The problem we confront arises when that official has nodiscriminatory animus but is influenced by previous com-pany action that is the product of a like animus in some-one else.

But ultimately, the court dismissed concerns that the court failed to adopt a rule that immunized employers who perform an independent investigation leading to a termination.  The court said that because a supervisor is an agent of the employer, the employer should be responsible when that supervisor "causes" an adverse employment action:

We therefore hold that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action,3 and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.

But perhaps to satisfy critics, Justice Scalia can’t help but to drop an interesting footnote that suggests that there are limits to such liability. In footnote 4, he notes

Needless to say the employer would be liable only when the supervisor acts within the scope of his employment or when the supervisor acts outside the scope of his employment and liability would be imputed to the employer under traditional agency principles….We express no view as to whether the employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision. 

While the case is applied in the context of USERRA (discrimination against some service members), the language is similar to Title VII and thus employers should expect such logic to be applied to those cases too.

For employers nationwide, the case is probably the most significant of this year’s Court term and we can certainly expect to see this theory come up time and again. Employers in Connecticut, however, have had to deal with this theory already so its impact here may be a bit more muted. 

Not everything that happens in the workplace can give rise to a viable discrimination or retaliation claim.  Various courts have emphasized that there must be an "adverse employment action". Otherwise, a claim will go nowhere.

But what exactly IS an adverse employment action? A new federal court case in Connecticut — in borrowing from judicial dictum of the Second Circuit — has said what is not: a paid administrative leave. 

In Cooper v. Department of Corrections (download here), the court said that the employer had claimed "that it decided to place Mr. Cooper on leave based on [a] report, according to which Mr. Cooper made statements that might well be considered threats or warnings of violence." 

Relying on language from the Second Circuit that  "an employee does not suffer a materially adverse change in the terms and conditions of employment where the employer merely enforces its preexisting disciplinary policies in a reasonable manner," the District Court said that it was relying on that language here to find that no adverse employment action occurred.

The case is a good example of how an employer had clear written policies on how to handle alleged threats of workplace violence and addressed it through a paid administrative leave policy that returned the employee to the same position upon conclusion of the investigation.  Even though the leave lasted nearly two months, the court said that was not enough to find that it was an adverse employment action. 

(H/T Wisconsin Employment & Labor Law Blog)