Yearly Archives: 2013

Supreme Court Clarifies Standard for Supervisor Liability in Harassment Cases

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Under Title VII, an employer may be liable for the workplace harassment of employees that is based on sex, race, religion or national origin.   The standard for liability often begins with the employment position of the alleged harasser.  When the harasser is a co-worker, a plaintiff must show that the company had knowledge of continuous and pervasive harassing behavior and failed to take remedial action.  Additionally, an employer can defend a claim by proving that an employee failed to utilize available corrective measures such as an internal HR complaint procedure.

However, when the alleged harasser is a supervisor, the standard for liability changes if the supervisor takes a tangible, adverse action against an employee.  In such cases, an employer may be vicariously liable for the conduct of its supervisors.  In Vance v. Ball St. University (April 2013), the U.S. Supreme Court provides clarification regarding the very definition of a supervisor under Title VII.    In a 5-4 decision, Vance holds that an employee is a supervisor “if he or she is empowered by the employer 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.”   Inversely stated, a supervisor is not someone who merely has some nebulous authority to instruct or direct another person in the performance of their duties.

Does the FMLA Provide for a”Light Duty” Return to Work?

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The Seventh Circuit recently addressed the interplay of FMLA and “light duty” restrictions in James v. Hyatt Regency Chicago (7th Cir., 2013).   In James, the plaintiff suffered from a visual condition and subsequent eye injury that prompted surgery and an associated request for Family Medical Leave (FMLA).   After his 12 weeks of FMLA expired, the employee requested to return to work in a light duty capacity that would eliminate some essential functions of his position.  When the employer could not accommodate his request, the employee nonetheless remained on leave based upon the terms of his union’s collective bargaining agreement.  Ultimately, the employee returned to work but still sued under the FMLA, contending that the employer failed to promptly reinstate him in accordance with his physician’s restrictions.

At the conclusion of an FMLA period, the FMLA requires that an employer reinstate the employee to his prior position or “an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” The Seventh Circuit affirmed that the FMLA does not require an employer to return an employee to his position if that employee cannot perform an essential function of the job. 29 C.F.R. § 825.214(b).  As otherwise stated, there is no such thing as obligatory light duty under the FMLA.   (Note, other laws such as workers’ compensation and ADA statutes may impose different light duty obligations depending on the facts of each individual case.)