The new term for the Supreme Court, beginning in October, will include a case about when a company is liable for a supervisor’s sexual or racial harassment. The Supreme Court agreed on Monday to decide the following question:
Issue: Whether the “supervisor” liability rule established by Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.
The specific case involves a state university catering department worker who was the butt of racial invective and claimed retaliation. The people who gave her the hardest time were her direct supervisor and coworkers. The Seventh Circuit upheld the dismissal of the case because the worker did not continually complain about ever instance, and the university investigated each claim. Moreover, the university counseled workers when their bad behavior was investigated.
The issue before the Court is crucial to the daily life of harassed employees. Many courts, following Supreme Court precedent announced in 1998, limit harassment liability to situations where the harassment is carried out by supervisors who have the authority to hire, fire, promote, demote and discipline. Many line supervisors can affect an employee’s day in every way, but do not have that level of authority. If such a supervisor is the harasser, the employee must report the harassment, and let the company take reasonable steps to address the problem. As many employees know, a warning to the harassing supervisor often does little to correct the situation, and does nothing to prevent wholesale ostracism, selective enforcement of workplace rules, and multiple small indignities that do not add up, in the opinion of many judges, to race or sex discrimination.