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Vance v. BSU Anniversary: A Case of the Terrible Twos

There’s more than corn in Indiana. There’s also Ball State University, home of my alma mater high school and defendant-appellee in the terrible Supreme Court decision Vance v. Ball State University, which “celebrates” its second anniversary today.

In that decision, a bare majority of the Court weakened protections against workplace harassment. Let me explain. In 1998, the Court recognized that employers have an extra duty to make sure supervisors in the workplace do not harass their subordinates. That’s because supervisors can abuse their employer-granted power to create or maintain a hostile environment. After all, it’s hard to tell your harasser to “beat it” or report him or her, if you know that person can make you work in unsafe conditions, deny overtime or time off requests, or fire you.

But before Vance, courts divided about which employees were supervisors. Some courts (and the Equal Employment Opportunity Commission) took a more realistic, modern view: your supervisor is someone who directs your daily activities (e.g., sets your schedule, gives you favorable or unfavorable work assignments, approves time off) or someone who can make tangible employment actions (e.g., hire, fire or promote you). Other courts took a less nuanced view: a supervisor is just someone who can hire or fire you (or take other tangible employment actions).

What did Vance do?

In Vance, the Supreme Court held that only people with hire/fire power are supervisors. The 5-4 opinion authored by Justice Alito said that employees with the ability to tell you what to do are your co-workers, not your supervisors, for determining employer liability for workplace harassment.

So what does all that mean? It means it’s much harder to hold employers liable for harassment perpetuated by direct supervisors. That’s because the standard for co-worker harassment is negligence, which is a much tougher standard to prove as a plaintiff. Because of Vance, many victims of workplace harassment have been and will be denied their day in court, not because harassment didn’t occur, but because of a legal technicality that leads to the conclusion the harassment wasn’t the employer’s fault. In fact, as of November 2014, 43 published sexual harassment cases decided after Vance dismissed the plaintiff’s claims because the victim couldn’t prove the harasser was a supervisor.

Vance is particularly damaging for the 17 million workers in the ten largest low-wage industries—three-quarters of whom are women. In these industries, direct supervisors without hire/fire power are often the only person in management that low-wage workers interact with. Thanks to Vance, employers in these and other industries are incentivized to avoid liability for harassment by limiting the number of supervisors that can hire and fire employees, instead of having strong anti-harassment policies and procedures. This is not what Title VII and other workplace discrimination laws were intended to do.

What’s happened since Vance?

But there’s hope! Over the last two years, NWLC has talked about the impact of Vance in EEOC hearings and is part of an EEOC task force that will study workplace harassment. Last year, Sen. Tammy Baldwin (D-WI) introduced legislation that would override Vance. And this year and last, the Maryland General Assembly did the same. We’ll continue to keep our eye on this issue and support efforts to reverse Vance. Because all workers deserve strong protections against workplace harassment—even Hoosiers in Indiana.

It's time for change, and we must act now. Time's up.