Harassment cases typically involve two types of scenarios. The first is when the employee’s supervisor is the alleged harasser. In such a situation, if a tangible employment action is taken (i.e. the employee is terminated), the employer is strictly liable. The second scenario is when an employee’s co-worker is a supervisor. In those situations, the employer is liable only if they act negligently in discovering or correcting the behavior. Accordingly, the ability of a restaurant employer to successfully defend such claims often rests upon whether the harasser is a supervisor. Clearly, co-worker harassment is easier to defend than cases involving supervisor harassment.
On June 24, 2013, in Vance v. Ball State University, the United States Supreme Court clarified the definition of “supervisor.” Until this ruling, the Equal Employment Opportunity Commission (“EEOC”) took a broad view of the term supervisor and included as supervisors employees who assign, direct, or oversee an employee’s work. The Second, Fourth, and Ninth Circuits have agreed with the EEOC. Conversely, the First, Seventh, and Eighth Circuits have taken a narrower view, holding that an employee is a supervisor only if he or she has the authority to take a tangible employment action against an employee, such as hiring or firing. In a significant victory for employers, the Supreme Court agreed with the First, Seventh, and Eighth Circuits by holding that a supervisor must have the authority to take a tangible employment action. In doing so, the Supreme Court narrowed the definition of “supervisor,” invalidated the EEOC’s position, and opened the door for employers to find a new path to victory in such cases.
What to Do
In light of the Supreme Court’s decision, restaurant employers should take the following three actions:
(1) Review the job duties for all managers and supervisors to determine whether you want them to have authority to hire or fire. Ensure that their written job descriptions accurately reflect the individual’s level of responsibility.
(2) Ensure that you have an employee handbook and that it includes a well-drafted anti-harassment and complaint procedure.
(3) Implement anti-discrimination and harassment training for all employees and supervisors on at least an annual basis.