Today, Assistant Counsel Johnathan Smith testified before the Maryland House of Delegate’s Health and Government Operations Committee in support of House Bill 1350, the “Fair Employment Preservation Act of 2014,” which seeks to ensure that employees facing unlawful supervisor harassment in the workplace are adequately protected.

Since 1998, the United States Supreme Court has established that employers can be vicariously liable under Title VII of the Civil Rights Act of 1964 for harassment committed by employees with supervisory authority over subordinate workers.  The Equal Employment Opportunity Commission—the agency charged with enforcing federal antidiscrimination laws in employment—as well as a number of federal circuit courts of appeals interpreted employees with supervisor authority to include:  (i) those employees that can take tangible employment actions (e.g., hiring, firing, promoting, reassigning) against a subordinate worker, and (ii) those employees that direct the subordinate worker’s daily work activities.  The standard articulated by the EEOC recognizes that even though low-level supervisors who oversee an employee’s day-to-day activities may not be empowered to make tangible employment decisions, those individuals nevertheless have significant power over their subordinates, and that power can, if abused, lead to particularly pernicious forms of unlawful discrimination.  However, last June, in a 5-4 decision in Vance v. Ball State University, a majority of the Supreme Court rejected the definition of “supervisor” advanced by the EEOC, and held that employers can only be found vicariously liable for harassment committed by employees who are authorized to make tangible employment decisions. 

“The majority opinion in Vance is not only misguided, it also denies the workplace realities for millions of American workers,” Mr. Smith testified today.  “The unfortunate reality remains that in far too many situations, low-level supervisors abuse the authority they have been delegated by their employer to harass or intimidate their subordinates.   By effectively shielding employers from facing vicarious liability for harassment conducted by low-level supervisors, the majority’s opinion will likely have the unintended consequence of guaranteeing that unlawful discrimination continues in our nation’s workplaces.”

Racial and sexual harassment in the workplace remains a problem for a large number of American workers; women—and particularly women of color—are particularly vulnerable. 

The Fair Employment Preservation Act would reaffirm that, under Maryland law, the EEOC’s definition of supervisor still applies.  This crucial legislation will ensure that workers in the State of Maryland will have meaningful legal recourse under Maryland state law in situations where they are being unlawfully harassed and abused by their low-level managers and supervisors.  The Fair Employment Preservation Act also has the potential to serve as a model for other legislative bodies, including the United States Congress, to guarantee that our nation’s workplaces are free from unlawful harassment, intimation, and abuse.

LDF is also submitting testimony in support of Maryland Senate Bill 688, which is a companion bill to House Bill 1350.

A copy of Mr. Smith’s testimony can be found here.