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.