This week the United States Congress introduced critically important new legislation, the Fair Employment Protection Act.   The measure, introduced by Senators Tammy Baldwin (D-WI) and Tom Harkin (D-IA) in the Senate, and Representatives George Miller (D-CA) and Rosa DeLauro (D-CT) in the House of Representatives, seeks to restore workplace protections against unlawful harassment that were recently weakened by the United States Supreme Court.

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 (EEOC)—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 Fair Employment Protection Act would undo the damage caused by the Vance decision, and ensure that workers all across the country have meaningful legal recourse under federal antidiscrimination law in situations where they are being unlawfully harassed and abused by their low-level managers and supervisors.  This legislation is critical, especially since racial and sexual harassment in the workplace remains a problem for a large number of American workers. 

Senator Baldwin, in explaining why she introduced this legislation, observed:  “If you work hard and play by the rules you should have the opportunity to get ahead. Unfortunately, workplace harassment remains an unacceptable reality that threatens the economic security of far too many people, particularly women, working to build a better future for themselves and their families. Harassment has no place in the workplace and should never impede economic success. I’m proud to introduce the Fair Employment Protection Act to restore important workplace protections, move this issue forward, and help provide American workers the level playing field they deserve.”

“Unfortunately, both sexual and racial harassment remain pervasive problems in workplaces all across the country, and women workers—and women workers of color—are particularly vulnerable to having to endure this odious conduct,” said Johnathan Smith, Assistant Counsel at LDF.  “The Fair Employment Protection Act is vital to ensuring that American workers have meaningful legal recourse when any of their supervisors abuse their authority and engage in unlawful harassment.”

LDF has sent a letter to Congress urging quick passage of this important legislation. A copy of that letter can be found here.