This term, the United States Supreme Court will decide a number of high-profile issues in civil rights and employment cases. Among the questions to be tackled by the Court include the validity and proper scope of voting rights protections. Given the numerous vote-suppression tactics used across the country in the run up to the November 2012 election – as well as the obscene amount of money now pouring into the electoral process because of the Court’s recent decision in Citizen’s United v. Federal Election Com’n, 130 S.Ct. 876 (2010) – the forthcoming rulings should be based on a full and fair accounting of the nation’s history and current circumstances. As the decisions in Bush v. Gore, 531 U.S. 98 (2000) and, more recently, in AT&T Mobility, LLC v. Concepcion, 131 S.Ct. 1740 (2011) and Knox v. Services Employees Int’l Union, Local 1000, 132 S.Ct. 2277 (2012) illustrate, however, the Court’s decisions in the areas of labor and employment law, civil rights, and consumer protection have seemingly been shaped by ideological considerations rather than fidelity to principle or precedent.
In this context, some advocates are concerned about the Court’s decision to address who is a supervisor or agent of the defendant(s) in a given employment case for purposes of holding the defendant(s) responsible. Vance v. Ball State Univ., U.S., No. 11-556. These advocates believe that the Court is reviewing Vance to define supervisor in an extremely limited way such that an employer will rarely be held responsible in the future for the conduct of its supervisors in sex harassment cases and beyond. As a practical matter, how the Court decides the question of vicarious liability will have reverberations in labor and civil rights cases as well as in employment cases because who is a supervisor or agent of the defendant(s) is often a key issue in all of those matters.
Advocates for employees and others pursuing legal rights are concerned because the Court seems poised to upset prior legal authority on the definition of a supervisor. Burlington Industries v. Ellerth, 524 U.S. 742, 747 (1998) (holding that the harasser was a supervisor because he could recommend hiring and promoting); EEOC Policy on Vicarious Liability, § III(A)(1) (1999) (confirming that a supervisor includes employees with power to recommend discipline); see also Pennsylvania State Police v. Suders, 542 U.S. 129, 144 (2004) (citation omitted) (reiterating that hiring, firing, failing to promote, reassigning employees, and other tangible employment actions are “within the special province of the supervisor.”); 29 U.S.C. § 152 (11) (“The term ‘supervisor’ means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees. . . .”).
Fortunately, even a pro-defendant ruling in Vance on the question of vicarious liability may not have a far-reaching negative impact. In particular, given how readily courts have been to rule for defendants under the affirmative defense established by Ellerth and Faragher v. Boca Raton, 524 U.S. 775 (1998), a negligence theory of liability is already becoming a more frequent path for plaintiffs.
Importantly, a defendant has no affirmative defense to a plaintiff’s claim of harassment under a negligence theory of liability because the question is whether the employer knew or should have known about the harassment and did not take immediate or adequate corrective action. In other words, either actual or constructive knowledge confers notice of the harassment as well as the duty to take the required action. Consequently, a plaintiff can show the defendant(s) had notice of the illegal conduct with, for example, evidence that other people at other facilities working under other supervisors experienced similar treatment – even when a plaintiff is unaware of that evidence until after filing suit – because such other-acts evidence is “highly probative of . . . whether a reasonable employer should have discovered the sexual harassment.” Sandoval v. ABM, 578 F.3d 787, 802, 803 rhrg. and rhrg. en banc denied 578 F.3d 787 (8th Cir. 2009).