Maryland Considers Rejecting Vance Standard in Harassment Cases

Maryland Considers Rejecting Vance Standard in Harassment Cases

The Maryland General Assembly usually meets only 90 days per year.  Its term ends in early April.  Unless something crucial, like a budget, has not passed, the session is over until the next January.  Now that it’s the end of February, lots is going on right now.

Yesterday a House of Delegates committee heard hearings on a bill to adopt as Maryland law the dissent by Justice Ruth Bader Ginsburg in Vance v. Ball State University, 133 S.Ct. 243 (2013).  The companion Senate Bill 688 will be at issue today.  These bills would reverse an overly restrictive judicial interpretation of when an employer can be held liable for employment harassment by a supervisor.   Although state courts often refer to federal precedents for guidance, though they are not bound by federal precedents.  The reason is that both federal and state laws outlaw discrimination.  The Supreme Court issues opinions about how to interpret the Civil Rights Act of 1964, a federal statute.  Federal discrimination law is now subject to last year’s Supreme Court case, which creates a new barrier to proving that discrimination motivated an employment decision.  Under the case of Vance v. Ball State University, 133 S.Ct. 243 (2013), an employee who was sexually or racially harassed is not entitled to a remedy unless the biased supervisor had the explicit authority to hire, fire, and otherwise affect her status.

The Vance rule ignores the reality of modern workplaces.  In many instances a supervisor is not permitted by the rules of the employer to make a decision to fire an employee.  Such a decision is recommended by a supervisor, but must be approved by a human resources department or a higher level manager.  Ironically, the reason for this oversight is to ensure fairer decisions.  But the management individuals who approve the disciplinary decision usually lack personal knowledge of the truth of the reports of poor performance or bad behavior prompting the supervisor’s recommendation.  Thus, they have no option but to adopt the supervisor’s recommendation, unless they know that the motivation for the report was illegal.

If enacted, the new law would continue to permit an employee to bring a claim of discrimination if a person who “undertakes or recommends tangible employment actions affecting another employee or an applicant for employment, including hiring, firing promoting, demoting, and reassigning, another employee or an applicant for employment, or directs, supervises, or evaluates the work activities of another employee.”  It is consistent with long-standing law imposing liability on employers for the acts of their employees. Moreover, it avoids a troubling trend in federal law to undercut the protection afforded Maryland citizens to work free of discrimination.

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