Report Tackles Supreme Court Ruling on Workplace Harassment

One day in Wyoming, a McDonald’s shift supervisor picked up a crew member from school. According to reports, instead of driving her to work as he had promised, Jacob Wayne Peterson, 21, told Megan McCafferty, 15, that she didn’t need to go to work, offered her marijuana, and sexually assaulted her. Last August, the U.S. Court of Appeals for the Tenth Circuit found the franchisee operating the restaurant could not be held liable, following the Supreme Court’s June decision in Vance v. Ball State University.

In essence, the Supreme Court overruled previous guidance from the Equal Employment Opportunity Commission (EEOC) that had held employers liable for harassment by supervisors, defined as someone who directs daily work activities or who hires, fires, or determines pay or promotion. The ruling redefined supervisors to include only the latter group. Today, employers are held liable for harassment by those lower-level supervisors who direct daily work activities under a stricter standard that requires victims to prove that the employer was negligent.

A new report from the National Women’s Law Center, Reality Check: Seventeen Million Reasons Low Wage Workers Need Strong Protections from Harassment, outlines the scope of this issue and offers potential solutions. “The Vance decision is disconnected from the day-to-day reality of the workplace,” it says, “and makes it harder for victims at the hands of lower-level supervisor to have their day in court.”

Noting that the issue mostly affects the low-wage workforce, in which women are disproportionately represented, the report cites more than three million lower-level supervisors exercising significant control over the daily working lives of more than 17 million low-wage workers. As part of the report, the National Women’s Law Center conducted an informal survey of seven organizations advocating for workers in ten low-wage industries; it found that lower-level supervisors were used in all of them. Further, the organizations unanimously reported that such supervisors were able to assign tasks or give permission for breaks.

According to the report, the lack of justice Megan McCafferty’s found in the courts is but one example of how the Vance decision is making it harder for victims of workplace harassment to have their day in court. Picking up from a suggestion in Justice Ruth Bader Ginsburg’s dissenting opinion, the group urges Congress to pass the Fair Employment Protection Act (HR 4227 and S 1223) to correct the narrow definition of a supervisor created by the Supreme Court decision.

IThe report also calls for the EEOC to “take steps to ensure that employers do not mislabel their workers in efforts to avoid workplace liability.”

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