Trying to Make My Job Impossible

Walter Olson has an article on three recent 5-4 decisions where we narrowly avoided Supreme Court rulings that would have further separated liability as a business owner from actual bad actions.  This one in particular resonates with me:

Vance raised the question of who counts as a “supervisor” for purposes of harassment liability. Under existing Court precedent, employers are more or less automatically liable when a “supervisor” engages in harassment. When it’s a co-worker, they are still frequently liable – e.g., if they have received a complaint about it but not fixed things, or if they have negligently allowed the situation to develop – but liability isn’t as close to automatic. As all Justices recognized, however, the old model of a workplace with a military-like chain of command is fast giving way to newer models in which it is extremely hard to tell who is supervising whom, and in particular work orders (“Here, do this for me.”) can issue in multiple directions, not just from “up” to “down.” The four liberal justices were happy to blur the lines by saying that the more people are doing supervisor-like things, the more employees’ misconduct will be imputed automatically to the employer with no chance for it to raise counterarguments that it had acted properly. The majority led by Justice Alito more reasonably recognized that the ability to take tangible employment actions against a co-worker is a better test of “supervisor” than the ability to ask them to undertake some work responsibility.

Last year I got sucked into a lawsuit where an ex-employee, after her termination, sued our company for allegedly racist remarks another employee made about her husband.  The lawsuit was the first we ever heard about the alleged incident -- it was never reported to me or any other manager or employee, it was behavior that was banned by our policies and training, and we never (obviously) had a chance to make any corrections.  The litigant tried to argue that the person who made the alleged remarks was "supervisory" because she had sometimes been asked to draft a shift schedule for the manager.

We eventually had this dismissed, but it cost us $25,000 in legal fees to make it go away.   It was particularly frustrating given that if this had ever been raised as an issue to me, it would have been investigated and heads would have rolled if necessary.  This whole notion of having liability even when operating to the highest standards is just terrifying.  And four Supreme Court justices tried to make all this irrelevant, essentially linking my liability to the standards and intelligence of whoever is my weakest employee.


  1. jimkimmons:

    The move is on to merge business and government for real, rather than business just bribing government. Pretty soon there will be no private business, only government employees. I long ago made a decision to sell my business, work alone, never hire an employee, nor will I ever. I admire your tenacity, but fear you're losing the battle. It's all going to the "take care of the lowest common denominator," rather than enterprise and inventiveness.

  2. MingoV:

    "This whole notion of having liability even when operating to the highest standards is just terrifying."

    Physicians have faced that for decades. At least half the malpractice lawsuits are not associated with substandard care. Jurors often side with the plaintiff based on emotional responses rather than medical facts (eg: she's partly paralyzed and unemployed and needs the money and it's coming from the insurer anyway).

  3. Joe_Da:

    Vance and the denial of cert in the three epa/ethanol cases were the biggest cases affecting every day americans

    The denial of cert in the epa ethanol via the mandating of 15% ethanol blends that will end up damaging more the half the cars on the road

    The Vance case in the reduction in frivolous racial employment complaints. Our office had a mid level african american female employee, that was just about as racist as you can get. Every problem she had was due to "racial discrimination" She was terminated specifically because of her racist attitude which was disruptive to the rest of the office. With ginsburg, dissent, how do you get rid of the problem employee that always screams race.

    It wasnt discussed much in the facts of the case, though Vance had filed numerous complaints, which indicate she was a similar problem employee. Ginsburg dissent would open the door for hostile employees for big payouts. Makes it nearly impossible to fire a racist employee who is african american

  4. Gary:

    I don't know enough about this particular case to be sure but I often feel like the Supreme Court is stuck with making decisions with an extremely poorly drafted rule book. If Congress is drafting stupidly ambiguous or absurdly broad legislation then shouldn't the 'liability' for the destructive outcomes be assigned to Congress and not necessarily to the Court?

    I don't see how judicial review, even with a strict 'originalist' Constitutional viewpoint, can (or should) correct the garbage coming out of Congress. Garbage In Garbage Out.

  5. john mcginnis:

    First what I am about to say in no way reflects on the OP or his company. Not intended or implied.

    Sad to say, it is very common today that many employees trapped in a hostile work environment have only one recourse -- quit then sue. It is not the most optimal way to handle things but it happens all too frequently. Of my own belief if I was being harassed in some means, I would just up and move on. Life is too short to play in the Courts, where the lawyers get most of the winnings if any.

  6. Don:

    This is why I doubt I'll ever have a business with employees outside my family. The government has done their level best to make detain there's no upside to hiring people.

  7. randian:

    This tracks a worsening trend in Federal criminal law: the elimination of mens rea as an element of a crime.

  8. charles:

    well it's impossible to realize the dream of elevating all people to an equal lofty station in life, we all know that, so the liberals go for the next best thing. Equality in all at the lowest level. eg all of us being at the mercy of the intelligence or ability of your weakest employee/citizen.

  9. irandom419:

    My wife worked for an chip firm where a melanin Amercian wouldn't watch his machine. He'd put it into automatic and leave. He couldn't comprehend that you needed to watch your machine and if you didn't you'd get your ass fired. So they fired him and he was trying to sue them.

  10. Scott Zorn:

    And just as this law would limit the ability for employers to hire, the ability of Doctors to treat patients is limited.

    These laws negatively impact the employer and the Doctor, and also the "unseen" unemployed and ill.

  11. perlhaqr:

    The NeoFeudalists, hard at work. :-/

  12. mahtso:

    Of the 5 Justices that voted "correctly" in the blogger's view, how many were appointed by a President from the Coke Party? How many of the other 4 were appointed by a President from the Pepsi Party? Coke Party or Pepsi Party, no difference, right?

  13. mlhouse:

    They, meaning the liberal Democrats mainly, like to pretend that the margin an employer has is infinite.

  14. marque2:

    Pepsi party would be GOP. Coke party Democrats. Yes there is a difference and there is a historical reason for the distinction.

  15. marque2:

    I just did that. Up and moved - but have now been unemployed for 7 weeks. That is why folks put up with crap longer. There is still a lot of job uncertainty and the job market is pretty dead.

  16. john mcginnis:

    That of course is a certain risk. Hope you land something soon.

  17. Benjamin Cole:

    As someone who faced a nuisance suit for not selling a property I was not obligated to sell---that cost $15k to get dismissed---I deeply sympathize with this post.

    I hate to say it, but sexual harassment laws simply have to be scrapped. Enforcement, intent, the real story--everything is just too squishy.

  18. MNHawk:

    "We eventually had this dismissed, but it cost us $25,000 in legal fees to make it go away."

    No business in their right mind would locate to the banana republic known as America. Instead of bribing a government class type to make something go away, you have to bribe a lawyer class type. In the end, America is now no different than any other backwards s**thole of a nation.

  19. MNHawk:

    "With ginsburg, dissent, how do you get rid of the problem employee that always screams race."

    Get the fluke out of America and head to greener pastures, that's how.

  20. MNHawk:

    How many got the majority vote of the Pepsi Party? All I believe.