Seyfarth Shaw at Work managing director Philippe Weiss is quoted in the May edition of Firstline in an article discussing “surprising truths” on how to maintain positive and professional relationships in the workplace.

Click here to read the full article.

Seyfarth Shaw Labor & Employment attorneys Camille Olson and Nathan Kipp, along with Seyfarth Shaw at Work director Philippe Weiss, authored an article published in the Winter 2013 edition of The Illinois Manufacturer discussing Supreme Court decision Vance v. Ball State University and its application to the Faragher/Ellerth definition of “supervisor”.

Seyfarth Shaw attorneys Camille Olson and Nathan Kipp and managing director of Seyfarth Shaw at Work Philippe Weiss authored an article in the November 26 edition of the Daily Journal discussing the U.S. Supreme Court’s oral arguments in the case Vance v. Ball State University, in which the definition of the word “supervisor” is called into question in a case of alleged harassment.

On November 26, 2012, the U.S. Supreme Court will hold oral argument in a case that may reshape the scope of supervisor liability under the Court's opinions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). In Faragher and Ellerth, the Court held that, under Title VII of the Civil Rights Act of 1964, an employer is vicariously, and strictly, liable for its supervisors' workplace harassment of, and discriminatory conduct directed toward, employees. However, an employer is vicariously liable for harassment or discrimination inflicted by employees' co-workers only if the employer was negligent in either discovering or remedying the offending conduct.

In Vance v. Ball State University, the Court will examine the scope of the Faragher/Ellerth definition of "supervisor" by deciding whether (i) it encompasses all individuals who have the authority to direct and oversee a Title VII complainant's daily work, or (ii) is limited only to those individuals who have the power to "hire, fire, demote, promote, transfer, or discipline" the complainant. Depending on how narrowly or broadly the Court defines "supervisor," the volume of Title VII claims brought against employers involving employees in management-level positions will increase or decrease. Regardless of how the Court rules in Vance, the case will require employers to ensure that company-wide policies, training, job descriptions, and performance expectations are all consistent with current Title VII law so as to avoid and, if need be, to defend against any Title VII claim.

Facts

Plaintiff Maetta Vance was the only African American who worked in defendant Ball State University's Banquet and Catering Department. In 2006, she filed a complaint against Ball State, alleging, among other things, that the University violated Title VII through the actions of Saundra Davis, who also worked in the Banquet and Catering Department. Specifically, Ms. Vance claimed that Ms. Davis created and fostered a hostile work environment by making discriminatory remarks about Ms. Vance's race and ethnicity. Ms. Vance reported Ms. Davis' actions to Banquet and Catering Department supervisors, who investigated the claims. Because both women provided conflicting accounts concerning who harassed whom, the supervisors declined to formally discipline either woman and instead required both to undergo counseling concerning proper work-place behavior.

Based on these facts, Ball State filed a motion for summary judgment on the ground that it was shielded from Ms. Vance's suit under Faragher and Ellerth. In granting the motion, the U.S. District Court for the Southern District of Indiana concluded that Ms. Vance failed to establish that Ms. Davis was her supervisor; as the court noted, Ms. Vance's only evidence on the point showed that Ms. Davis had the authority to direct Ms. Vance's day-to-day activities, and was not required to record her time like other hourly employees in the Banquet and Catering Department. Thus, because Ms. Davis was merely Ms. Vance's co-worker, and because Ball State took corrective action in addressing Ms. Vance's claims by requiring both women to undergo work-place counseling, Ball State was immune under Faragher and Ellerth. The U.S. Court of Appeals for the Seventh Circuit affirmed the district court's decision, reasoning that Ms. Vance failed to establish that Ms. Davis had the authority to hire, fire, demote, promote, transfer, or discipline employees, and therefore failed to establish that she was a supervisor.

The Supreme Court granted Ms. Vance's writ of certiorari, placing front and center the question of what is the correct definition of "supervisor" under Faragher and Ellerth. For their part, the Circuit Courts of Appeals have formed two camps of thought when addressing the issue. In some circuits, a supervisor is one with whom an employer vests authority to direct and to oversee employees' daily work activities. Other circuits had adopted the narrower definition that the Seventh Circuit applied in its opinion: that supervisors are limited to individuals who have the power to "hire, fire, demote, promote, transfer, or discipline" employees. By hearing Ms. Vance's appeal, the Supreme Court will act as the final arbiter in defining "supervisor" under Faragher and Ellerth.

The Impact Of Vance

The Supreme Court's decision in Vance not only will impact employment discrimination and harassment litigation, it also will require employers to proactively re-examine policies, training, and job descriptions to ensure that the Faragher/Ellerth defense is available if litigation arises. The Court's conclusion as to the proper definition of "supervisor" will lead either to increased or decreased litigation against employers. On one hand, if the Court adopts the broader definition of supervisor — that is, an individual who has the authority to direct and oversee employees' daily work activities — employers will face increased exposure to Title VII claims. On the other hand, if the Court affirms the Seventh Circuit's narrower definition — that is, supervisors are individuals who have the power to "hire, fire, demote, promote, transfer, or discipline" employees — employers' exposure to Title VII litigation will decrease.

Vance underlines the importance of employers continuously taking steps to ensure that they can assert Faragher/Ellerth immunity if faced with a Title VII claim. As always, the optimal scenario is one where an employer avoids any such litigation altogether because it instituted the proper prophylactic measures. However, as recommended action items, employers should take the following steps:

• Review and, if need be, revise job descriptions and performance expectations of those employees in management-level positions to ensure that the descriptions and expectations do not undermine any opportunity to assert the Faragher/Ellerth defense. Employers should also continue to thoroughly and promptly investigate any harassment, discrimination, or retaliation claims to avoid any allegations of failing to take appropriate action to address offending conduct.

• Ensure that their anti-harassment, anti-discrimination, and anti-retaliation policies are up-to-date and comport with the latest developments of the law.

• Take appropriate steps to provide information to all employees — and, in particular, those in management-level positions — explaining those updated policies in practical, user-friendly terms.

• Deploy effective and practical Equal Employment Opportunity training programs (to ensure that supervisors, front-line managers, and others of authority are acutely aware of their broad Title VII obligations, and of how all non-discrimination laws can be implicated when dealing with employees or applicants).

Regardless of how the Court holds in Vance, such measures will help employers to reduce their exposure, if not altogether eliminate such exposure, to any costly and prolonged Title VII litigation.

Seyfarth Shaw's Future Coverage of Vance and Related Client Services

On Wednesday, November 28, Seyfarth Shaw will host a webinar that will further discuss the legal implications of Vance, any issues of interest that arose during oral argument, and the steps that employers can take to limit their exposure to discrimination and harassment claims. Please click here to register.

In addition, clients of Seyfarth Shaw should note that interactive live courses offered by Seyfarth's training subsidiary, Seyfarth Shaw at Work ("SSAW"), have all been updated to comprehensively address and illustrate managers' Title VII and policy obligations. In fact, all of SSAW's key compliance courses have been reviewed and praised by the U.S. Equal Employment Opportunity Commission's designated monitors and/or the U.S. Department of Justice in the context of specific consent decrees, and several have been identified by name in court decrees due to their impact. SSAW can also collaborate with clients to design user-friendly policies.

For information regarding a Seyfarth Shaw at Work training demonstration or course deployment options and pricing, please contact Melissa Walsh at (312) 460-6258 or mwalsh@seyfarth.com.

On October 12, 2012, the EEOC issued a new fact sheet: Questions and Answers: Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault or Stalking. As the title suggests, the publication addresses how employees and applicants who have experienced domestic or dating violence, sexual assault or stalking could experience conduct made unlawful by Title VII of the Civil Rights Act of 1964 ("Title VII") and/or the Americans With Disabilities Act ("ADA"). While noting that Title VII and the ADA do not expressly prohibit discrimination against applicants and employees based on domestic or dating violence, sexual assault or stalking, the EEOC makes clear that there are numerous possible situations where such employees and applicants can find protections under federal employment non-discrimination laws. Accordingly, while the EEOC's guidance states nothing new with respect to coverage and applicability of the federal non-discrimination statutes, it signals a clear area of focus for the agency.

In this new fact sheet, the EEOC provides an extensive list of questions and answers that provide hypotheticals to guide employers and employees alike. For example, the EEOC opines that terminating a female employee after she is a victim of domestic violence solely because of a potential fear that a battered woman brings "drama" to the workplace could run afoul of Title VII's prohibition of disparate treatment based on "sex." The EEOC also provides more familiar harassment and retaliation scenarios that would implicate Title VII, including hypotheticals discussing how domestic violence based on "sex" that is not investigated and resolved by an employer can be unlawful harassment, and how adverse actions taken against an employee after that employee complained of sexual assault by a manager could form the basis of a retaliation claim.

The EEOC also provides hypotheticals implicating the ADA. As an example, the EEOC explains that the failure to hire an individual because the individual recently received counseling for depression caused by being the victim of domestic abuse could be prohibited conduct, similar to alleged harassment of an individual due to permanent injuries received after a domestic attack. The EEOC also stresses that reasonable accommodations must be provided for a disability caused by domestic violence and/or sexual assault; for example, anxiety caused by a sexual assault.

While the new publication does not explicitly change the law or create a new protected characteristic(s), it does provide insight into the EEOC's focus. Indeed, the EEOC recently published a 2012-2016 Strategic Plan that outlines its four-year strategy for accomplishing the agency's mission to, among other goals, prevent employment discrimination through education and outreach. In that plan, the EEOC outlined a strategy to: (1) target outreach to vulnerable workers and underserved communities; and (2) provide up-to-date and accessible guidance on the requirements of employment anti-discrimination laws. This new guidance appears to be a direct result of the agency's goals set forth in the strategic plan, and demonstrates that the EEOC will stretch existing law to find protection for those who may not otherwise be deemed covered by the statutes.

In light of the foregoing, employers should consider the following actions:

• Amend equal employment opportunity, harassment prevention and other policies—to the extent that they include hypotheticals—to include examples of what constitutes discrimination or harassment when interacting with employees or applicants who have experienced domestic violence, sexual assault or stalking.

• Deploy and/or revisit workplace training programs (such as EEO or harassment prevention programs) to ensure that front-line managers and HR professionals are acutely aware of the EEOC's broad reading of Title VII and the ADA, and of how all non-discrimination laws can be implicated when dealing with such employees and applicants.

• Become familiar with state and local laws that explicitly provide protection for applicants and employees who are victims of domestic or dating violence, sexual assault or stalking, many of which require employers to provide leave for employees to seek medical care, legal assistance and/or to attend court.

• Understand how the Family Medical Leave Act and state medical leave laws could be implicated by issues arising in the workplace regarding domestic or dating violence, sexual assault or stalking.

• Develop a protocol to ensure a safe workplace when notified of a potential domestic or dating violence situation that could impact an employee and/or that employee's co-workers.

To address these action items, clients of Seyfarth Shaw should note that interactive live courses offered by Seyfarth's training subsidiary, Seyfarth Shaw at Work ("SSAW"), have all been updated to effectively address the areas and protections related to applicants and employees who are victims of domestic or dating violence, sexual assault or stalking. In fact, all of SSAW's key compliance courses have been reviewed and praised by the EEOC's designated monitors and/or the DOJ in the context of specific consent decrees, and several have been identified by name in court decrees due to their impact.

Seyfarth Shaw at Work’s Jeffrey Polisky and Philippe Weiss published an article in the February 23, 2011 edition of Employment Law360. Their article discussed three recent harassment law suits in which employers were unable to prove that they provided adequate harassment training for their employees. The authors point out that courts, plaintiffs’ lawyers and administrative agencies are increasingly focusing on whether a harassment or equal employment opportunity training program is effective and has long-term impact. Jeff and Philippe explain that in order to engage the participants, training skills and examples must be customized and tailored to the audience. The authors note that no outside agency or attorney can hope to challenge a credible, highly interactive harassment training program customized to your environment. The program’s customization and impact ultimately becomes part of your defense.