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What Vance v. Ball State means for Future Employee Harassment Cases

Employee Harassment On the 2nd and 4th Wednesday of every month, Howard Kurman, Chair of Offit Kurman’s Labor & Employment Practice Group, holds his Labor and Employment Telebriefs, an easy way to stay current and compliant with the latest Labor and Employment law developments. The focus is on the practical, lessons learned and actionable items by corporate decisions maker who are receiving this information early, in time to act on the suggestions and be proactive.

Here is an excerpt transcribed from Mr. Kurman’s Labor & Employment Telebrief – 11.25.13.

What Vance v. Ball State means for Future Employee Harassment Cases

An employee at Ball State University came forward and claimed she was the victim of workplace harassment by someone she perceived as her supervisor. According to previous Supreme Court rulings, employee harassment cases and how they immediately affect employers fall into one of several categories:

  1. Rank-and-file employee against rank-and-file employee: “The traditional law is where an active harassment is committed by a rank-and-file employee against another rank-and-file employee,” explains Mr. Kurman. “The employer is only liable if the employee can show negligence on the part of the employer.”
  2. Supervisor against rank-and-file employee: “On the other hand, under settled Supreme Court law where an act of harassment is committed by a so-called supervisor, and where there is a tangible employment action taken against the employee or committed against the employee by that supervisor such as demotion, firing, transferring, or some other significant employee action, that employer will be absolutely liable without any kind of defense,” explains Mr. Kurman. “If there is no tangible employment action taken, in other words there may be an active harassment, but where it doesn’t result in a serious employment action such as demotion or transfer or firing, that employer will have a defense, and that defense is, number one, if it has exercised reasonable care to prevent and correct any of the harassing behavior, and, two, where the plaintiff or the employee who is complaining about the active harassment failed to take advantage of an existing anti-harassment policy promulgated and communicated by the company.”

What was not clear before Vance v. Ball State University was what constitutes a “supervisor.” The Supreme Court under Justice Alito decided that in any kind of a Title 7claim, “an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.”

This will now make it increasingly more difficult for an employee to allege and successfully prove a case of workplace harassment involving a so-called supervisor. Unless the employee can demonstrate that this “supervisor” is “imbued with very significant authority, meaning the authority to hire or fire or fail to promote or reassign with significantly different responsibilities or a decision causing a significant change in benefits,” according to Mr. Kurman.

Employee Harassment If you have questions about What Vance v. Ball State means for Future Employee Harassment Cases, any harassment/discrimination/bullying issues or drafting an effective policy for your business or updating your existing one, please contact Offit Kurman attorney Howard Kurman at or 410.209.6417. Mr. Kurman regularly counsels clients on all aspects of employment/labor relation issues. He is a frequent keynote speaker to corporate decision makers at association and trade conferences on matters related to workplace law. Mr. Kurman’s commentary and real world advice on proactive compliance with state and federal laws can be accessed every 2nd and 4th Wednesday, 9:00 am ET, when he delivers Labor & Employment Telebriefs, 30 minute briefings on recent developments (over the past 2-3 weeks) that will most significantly affect U.S. employers.

Offit Kurman Labor & Employment Law Practice Group

At Offit Kurman Attorneys At Law, the attorneys in our Labor & Employment Law Practice Group help employers stay current with changes in the law and make proactive decisions regarding workplace policy and procedure. We are dedicated to helping you achieve maximum operational flexibility while minimizing your legal risk and cost.

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