6.26.2013

The United States Supreme Court Narrowly Defines “Supervisor” in Workplace Harassment Claims

This week, the United States Supreme Court clarified the definition of who is a “supervisor” when determining whether an employer is liable for an employee’s alleged wrongful harassment of another employee. In a 5-4 decision in Vance v. Ball State University, Justice Samuel Alito delivered the Court’s decision in holding that a “supervisor” is one who can “take tangible employment actions” regarding other employees. Examples of these types of actions include “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”

In this case, Vance, the Plaintiff/Petitioner, was an African-American caterer at Defendant/Respondent Ball State University. Vance alleged that Davis, a Caucasian employee in the Ball State catering department, racially harassed her. What was clear in the record was that Davis did not have the power to hire, fire, demote, promote, transfer, or formally discipline Vance. The trial court granted Ball State summary judgment in holding that Davis was not a “supervisor,” and therefore a heightened standard regarding an employers’ liability for this alleged harassment did not apply. Instead, a negligence standard was applied to Ball State in determining whether it should be liable when a non-supervisor allegedly harassed another employee based on that employee’s membership in a protected class. Because the trial court held that Ball State reasonably responded to all instances of alleged harassment that it should have reasonably been aware of, it fulfilled its duties under this lesser liability standard and was granted summary judgment. The Seventh Circuit affirmed, which decision the Supreme Court upheld here.

In this holding, the Supreme Court specifically rejected the Equal Employment Opportunity Commission’s (EEOC) definition of a “supervisor” as someone who has the ability to exercise significant discretion over another employee’s daily work. The Court held that this definition was not specific enough, and it would be very difficult if not impossible to determine prior to trial whether an individual was a supervisor under this definition. The Court reasoned that a jury would often have to decide whether an individual exercised enough power over another’s daily tasks to be classified as a “supervisor.” Under the Vance decision, courts will hopefully be able to determine with more certainty prior to trial whether an individual had hiring, firing, promoting, etc. power. Accordingly, courts should better be able to make appropriate legal decisions (such as whether to grant summary judgment) based on an easier determination of how the law should apply to an employer’s liability for one of its employee’s alleged harassment.

Whether an employee is a “supervisor” is important in determining whether the employer will be liable for his or her actions. This case reaffirmed the law that an employer is strictly liable for a supervisor’s harassment if it results in a tangible employment action. For example, if a male supervisor demotes a female employee because that female refuses to go on a date with him (harassment based on gender), then the employer is strictly liable for this harassing conduct. If the alleged harassment by the supervisor does not result in a tangible employment action (such as inappropriate comments based on the employee’s membership in a protected class), then the employer is liable only if it failed to exercise reasonable care to prevent and/or correct this harassing behavior, and the employee unreasonably failed to take advantage of the preventative or corrective opportunities provided by the employer.

On the other hand, an employer will be liable for a non-supervisor’s harassment of a fellow employee only if the employer knew or should have known of the harassing conduct, but failed to take immediate and appropriate action. The Vance decision described this standard generally as a “negligence” standard, and it is clearly less stringent than either standard applied to liability for a supervisor’s conduct.

Employers can take away a number of pieces of advice from the Court’s decision in the Vance case. First, although it is important to inform all employees of the absolute prohibition of workplace harassment, it is especially important to properly and extensively train employees who have the ability to hire, fire, or promote others because they will be held to a heightened standard. Also, it will be important to clearly and accurately define and describe who does and does not have the ability to hire, fire, or promote. Lastly, the Vance decision should make it easier for employers and their counsel to assess what standard will apply to employees who are accused of harassment in the workplace, which could encourage quicker resolutions, in or out of court, to these accusations.



Contact: Shawn Romer
330.762.7996
sromer@ralaw.com

United States Supreme Court Decision Makes it Easier for Employers to Defeat Title VII Retaliation Claims

On Monday, June 24, 2013, the U.S. Supreme Court, in University of Texas Southwestern Medical Center v. Nassar, ruled that to prove a retaliation claim under Title VII, a plaintiff must demonstrate that the adverse employment action at issue (termination, discipline, etc.) would not have occurred but for an improper retaliatory motive on the employer’s part. In other words, a plaintiff alleging retaliation will now have to prove that his/her protected activity, e.g., complaining of race, age or gender discrimination, was “the” cause of the alleged retaliation – not simply “a” cause.

This decision is a significant victory for employers. Prior to this decision, courts applied the more lenient “motivating factor” standard to retaliation claims. Under the “motivating factor” standard, a plaintiff only needed to show that retaliatory intent was among the motivating factors behind the adverse action. The high court’s endorsement of the “but for” standard means that a plaintiff must now show that retaliatory intent was the only factor behind the adverse action.

The Nassar decision should put a stop to employees asserting discrimination in anticipation of being fired or disciplined, and then claiming the discipline was in retaliation for complaining of discrimination. It should also lead to fewer frivolous retaliation claims and increase the number of retaliation claims dismissed by summary judgment.



Contact: Alexander Kipp
216.820.4204
akipp@ralaw.com

6.14.2013

Are We Still Arguing About This? Ohio Appeals Court Expands Definition of Employer Intentional Tort

The employer intentional tort won’t die. Despite the Ohio Supreme Court’s repeated attempts to restrict employers’ liability for these claims, courts continue to find new and creative ways to expand Ohio’s intentional tort statute.

The latest case comes from the Sixth District Court of Appeals. In Pixley v. Pro-Pak Indus., Inc., the plaintiff worked in the maintenance department of a company that manufactured containers, boxes and packaging materials. On the day of his injury, the plaintiff was examining a malfunctioning motor on one of the conveyer lines. At the same time, another employee was operating a transfer car, which is a vehicle that loads and transports product between conveyer lines. The employee accidentally drove the transfer car into the plaintiff, pinning him between the car and the conveyor and severely injuring the plaintiff’s leg.

The plaintiff commenced an intentional tort claim against his employer under O.R.C. 2745.01. He relied on part (C) of the statute, which provides for a rebuttable presumption of intent to injure if the employer deliberately removes an equipment safety guard. Plaintiff argued that the employer had deliberately bypassed the proximity switch of the transfer car’s safety bumper. This bumper is designed to compress when force is applied and shut off power to the transfer car’s motor.

The employer filed for summary judgment on the grounds that the bumper was not an equipment safety guard. In Hewitt v. L.E. Myers Co., the Ohio Supreme Court defined an “equipment safety guard” as “a device designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment.” The employer argued that the safety bumper was not an equipment safety guard because it was not designed to shield the operator from injury. Further, the plaintiff was not operating the transfer car at the time of his injury.

The trial court agreed with the employer and granted the motion, but the Sixth District reversed and remanded. The court stated that the definition of an equipment safety guard should not be limited to protecting only operators. With surprising boldness, the court rewrote the Supreme Court’s definition in Hewitt and defined an equipment safety guard as “a device designed to shield the employee from exposure to or injury by a dangerous aspect of the equipment.” The court concluded that the safety bumper on the transfer car was clearly designed to protect employees from a dangerous aspect of the equipment. Therefore, the court concluded that summary judgment in favor of the employer was improper because a genuine issue of material fact existed as to whether the employer deliberately removed an equipment safety guard.

This decision should be reversed. The Sixth District ignored the language of the Hewitt opinion and wrote a definition of equipment safety guard that the court liked better. The court also ignored the General Assembly’s decision to restrict liability for intentional torts, as the Supreme Court repeatedly emphasized in Hewitt, Houdek v. ThyssenKrupp Materials, Kaminski v. Metal & Wire Prods.

The Supreme Court has not yet decided whether it will review Pixley v. Pro-Pak Indus., Inc. It is possible that the court will decline to hear the case because it is suffering from employer intentional tort fatigue, having decided several major cases interpreting the statute over the last few years. If the Court decides to hear the case, it will almost certainly reverse. We will keep you updated regarding the Court’s decision and other development in this forever uncertain area of law.



Contact: Nathan Pangrace
216.615.4825

6.05.2013

Update: Ohio Supreme Court Rules That a Psychiatric Condition Must “Arise From” a Claimant’s Physical Injuries in Order to be Compensable Under Ohio Workers’ Compensation Law

On June 4, 2013, the Ohio Supreme Court issued its decision in Armstrong v. Jurgenson, Slip Opinion No. 2013-Ohio-2237. As previously published in this Blog, this case concerned a workers’ compensation claimant who was diagnosed with PTSD following a work related motor vehicle accident. The issue before the Court was whether claimant’s PTSD is a compensable injury under Ohio Workers’ Compensation law. The Court, in a 5-2 decision, held that claimant’s PTSD is not a compensable injury under Ohio Workers’ Compensation law because claimant’s PTSD was not caused by claimant’s physical injuries. In so ruling, the Court applied the plain language of the statute and its “arisen from” standard.
“Pursuant to the plain language of R.C. 4123.01(C)(1), a claimant must sustain physical injury or occupational disease as a prerequisite to recovering workers’ compensation benefits for a mental condition. A psychiatric condition is not a workers’ compensation injury except when the condition has ‘arisen from an injury or occupational disease sustained by that claimant.’ R.C. 4123.01(C)(1).

“The plain language of R.C. 4123.01(C) and (C)(1) requires that to constitute a compensable injury for purposes of workers’ compensation, a psychiatric condition must be causally related to the claimant’s compensable physical injury. Accordingly, the statute must be applied as written.”
Although claimant’s PTSD undisputedly arose contemporaneously with claimant’s physical injuries as a result of the work related motor vehicle accident, the record contained competent, credible evidence that claimant’s physical injuries did not cause his PTSD. In other words, claimant’s PTSD did not arise from his physical injuries, rather, his PTSD arose directly from the accident itself. Therefore, in accordance with the plain language of R.C. 4123.01(C)(1), the Court held that claimant’s PTSD is not compensable under Ohio Workers’ Compensation law.

 


Contact: Alexander Kipp
216.820.4204
akipp@ralaw.com