Earlier this week, the Supreme Court came down with two decisions that may make it more difficult for victims of sexual harassment and other forms of discrimination to assert claims against their employers. These decisions bring even further into light the significant distinctions between the federal law and the far more expansive New York City Human Rights Law.
In Vance v. Ball State, the Court addressed what the definition of a “supervisor” is under the Title VII, the federal human rights law. This was a significant question because, under the Court’s twin decisions in 1998 known as Faragher and Ellerth, the courts place much higher burdens on an employer when the harasser is a supervisor, as opposed to merely a co-worker. The Court, in a 5-4 decision, concluded that an employer can be considered a supervisor where “he or she is empowered by the employer to take tangible employment actions against the victim.”
This means that only individuals who have the power to hire and fire or impact salary can be considered a supervisor. The majority decision, written by Justice Alito, concluded that such a framework makes it easier for employers, courts and judges to determine whether the harasser is a supervisor and to make decisions about cases. If the harasser is not a supervisor, the Court held, then the company can only be liable if it was negligent in permitting the harassment to occur, meaning that it knew or should have known of the harassment and failed to stop it.
The dissent, written by Justice Ginsburg, noted many difficulties in such a strict interpretation of who is a “supervisor.” Justice Ginsburg advocated for the definition previously used by the Equal Employment Opportunity Commission (“EEOC”), which looked at a variety of factors and concluded that someone who controlled an employee’s workplace was a supervisor, even if he or she could not make “tangible” employment decisions like hiring and firing. The dissent pointed out that, under the Court’s standard, it may be harder for many victims of harassment to prove claims against their employers, thereby undercutting the purpose of the human rights law.
Justice Ginsburg implored Congress to address this issue, stating, “The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.”
While the federal law's definition of “supervisor” may alter certain claims under federal law, the impact on victims of sexual harassment in New York City may not be as drastic. The New York City Law is one of the broadest human rights laws in the county and was specifically designed to be broader than its state and federal counterparts. By the terms of the statute, an employer is liable for a harasser’s conduct where the harasser “exercised manager or supervisory responsibility.” While courts have not yet address this distinction, this is a far broader definition than the Supreme Court adopted in Vance and should be ruled to include more than those who are able to make tangible employment decisions.
We look forward to seeing how the courts of New York interpret the Supreme Court’s decision in Vance and compare it to the far different language of the New York City Human Rights Law.