By Liz Watson, Senior Counsel and Director of Workplace Justice for Women, National Women's Law Center
Cross-posted from NWLC's blog
Lynette Harris, a maintenance technician, brought a sexual harassment suit against the City of Baltimore’s Department of Public Works in 2006. She alleged that male coworkers and supervisors referred to her and other women as “bitches” and used other derogatory terms on almost a daily basis, that she was repeatedly exposed to provocative photos of women in common areas at work, and that sexually explicit conversations were common in the workplace. The court held that Harris was entitled to a trial on her claims of supervisor harassment because several of her harassers were able to exert control over her routine work assignments, even though it was unclear whether her supervisors had the power to hire and fire her.
But, as a result of the Supreme Court’s decision last June in Vance v. Ball State University, courts across the country will be forced to restrict the definition of supervisor to only those with the power to hire and fire, and the like. This means that employers will no longer have a heightened legal obligation to protect against harassment by lower-level supervisors who direct daily work activities but are not authorized to take actions like hiring and firing – and that employees harassed by lower-level supervisors will have to bring their claims under the far tougher standard that applies to cases of coworker harassment.
Restricting the definition of supervisor to exclude those who direct daily work activities but do not have the power to take actions like hiring and firing, leaves workers like Lynette Harris who are harassed by lower-level supervisors without an effective remedy.
The reality of the workplace is that lower-level supervisors are ubiquitous. In Maryland there are nearly 51,000 lower-level supervisors for 347,000 low-wage workers. Lower-level supervisors oversee daily work activities, including assigning job tasks, setting schedules, and telling employees when they can take breaks. And they are very much perceived as supervisors by their subordinates.
The Maryland Fair Employment Preservation Act would address the mismatch the Supreme Court created between the law and workplace reality by rejecting the artificial distinction the Court created between higher-level and lower-level supervisors, and ensuring that all workers in Maryland have an effective remedy from supervisor harassment under Maryland’s nondiscrimination law. Hearings will be held on this important bill in the Maryland House today and Maryland Senate tomorrow.
Technical note: National Women’s Law Center calculations based on U.S. Department of Labor Bureau of Labor Statistics May 2012 State Occupational Employment and Wage Estimates, available at http://www.bls.gov/.... In Maryland virtually all low-wage workers (98 percent) work in fields that have both substantial low-wage worker populations (at least 10 percent of workers in the field) and lower-level supervisors. In these fields, there are nearly 51,000 lower-level supervisors for 347,000 low-wage workers – which means that there are almost 15 lower-level supervisors for every hundred of these low-wage workers. Data only include first-line supervisors (described here as lower-level supervisors) who are responsible for low-wage workers.