Did you know that a narrowly divided 5 to 4 Supreme Court recently watered down protections for victims of workplace harassment? More than 15 years ago, the Supreme Court recognized the potential for supervisors to abuse their power over their subordinates and employers’ responsibility to prevent that abuse. And the Court put in place strong protections from harassment by a supervisor. But the Court’s recent decision in Vance v. Ball State University [PDF] rolled back those protections by including within their reach only supervisors with the power to take actions like hiring and firing. The Vance decision said that supervisors who direct daily work are now mere coworkers in the eyes of the law, and must bring their cases under the much more difficult standard that applies to coworker harassment claims. Now workers will have a much harder time holding their employers accountable for harassment committed by lower-level supervisors who assign tasks, set schedules, and control other aspects of their day-to-day work. As Justice Ginsburg noted in her dissent, the decision was “blind to the realities of the workplace.”
Reality Check: Seventeen Million Reasons Low-Wage Workers Need Strong Protections from Harassment, released today by NWLC, highlights three particularly important workplace realities:
Workplace reality #1: Sexual harassment is pervasive in many low-wage workplaces.
Workplace reality # 2: Millions of lower-level supervisors have significant power over low-wage workers. They make decisions like who works nights and who works days, who can take a break and who cannot, and who gets the best and the worst assignments.
These lower-level supervisors are very prevalent in the American workplace, and about half are in low-wage industries. New NWLC data analysis shows:
- There are 17.4 million low-wage workers in fields with a lower-level supervisor and where low-wage jobs account for at least ten percent of the workforce.
- 3.1 million lower-level supervisors oversee these low-wage workers.
- In comparison, there are only 690,000 managers supervising the low-wage workforce.
This means that in the low-wage fields examined in the report there are more than four times as many lower-level supervisors as higher-level managers.
Workplace reality # 3: Workers need strong protections from harassment by lower-level supervisors. The report shows that when courts have applied an overly narrow definition of supervisor – which is now the law nationwide after Vance – harassment victims were often denied their day in court. In contrast, they were more likely to be able to move forward with their sexual harassment claims when the court followed a commonsense understanding of who was a supervisor.
Unless policymakers step up to the plate, the Vance decision will leave millions of workers who report to lower-level supervisors with inadequate protections from harassment – particularly workers in low-wage jobs, who are already vulnerable to harassment. The report concludes with practical solutions to address this problem, like the Fair Employment Protection Act, which would restore strong protections from harassment by both employees with the authority to take actions like hiring and firing, and employees who are authorized to direct the daily work of others.
Read the report here.