The Center’s report documents how the Vance decision is divorced from current workplace realities, with a particular focus on the low-wage workplace. The report offers a glimpse into the post-Vance future, by chronicling cases of egregious harassment by lower-level supervisors in which women lost in court because the courts held that their harassers were coworkers, rather than supervisors. The report then highlights practical steps that Congress, states, and the Equal Employment Opportunity Commission can take to address the mismatch between current law and workplace realities.
In a recent five-to-four decision in Vance v. Ball State University, the Supreme Court watered down workplace protections from harassment. The Court held that supervisors who direct daily work activities – but lack the power to hire and fire – are mere coworkers, and that the tougher legal standard that applies in cases of coworker harassment also applies to harassment by these lower-level supervisors. The Court’s cramped definition of supervisor ignores workplace realities, with negative consequences for millions of workers.
The reality is that most lower-level supervisors have significant authority over their subordinates, even though they do not have the power to hire and fire. The report provides new data analysis showing that there are more than three million of these lower-level supervisors for more than 17 million low-wage workers – virtually all of the low-wage workforce. And another three million lower-level supervisors oversee millions of workers who do not earn low wages.
The Vance decision puts all workers who are harassed by lower-level supervisors between a rock and a hard place. And it may be particularly damaging to workers in low-wage jobs who are very likely to report to a lower-level supervisor and especially vulnerable to harassment. These workers know that they may be putting their jobs on the line by reporting harassment. For those still willing to take the brave step of trying to hold their employers accountable despite the risk involved, they now stand a good chance of having their cases thrown out for failure to meet the definition of supervisor adopted in Vance. And their employers have fewer incentives to prevent and remedy harassment by lower-level supervisors, making harassment more likely to occur.