Tag Archives: Lawrence J. Rosenfeld

law.courts

Determining Supervisory Status in Harassment Cases

In a season filled with many highly-anticipated rulings from the Supreme Court, one that warrants particular attention by Arizona employers is its June 24, 2013 decision in Vance v. Ball State University, in which the Court clarified the circumstances under which employers will be held strictly (i.e., automatically) liable for harassment by supervisors.

According to previous Supreme Court rulings, employers could be held automatically liable for harassment by a supervisor if the harassment culminated in a “tangible” employment action.  If, however, the harasser was not the victim’s supervisor, but instead merely a co-worker, then the employer only could be held liable if it was negligent in controlling working conditions.

It was under this 15-year old legal precedent that a federal court in Indiana considered Maetta Vance’s lawsuit.  Vance, an African-American woman, worked in the Banquet and Catering Department at Ball State University. Over the course of her employment, Vance lodged numerous complaints of racial discrimination and retaliation, including against Saundra Davis, a white catering specialist.  Vance alleged that Davis intimidated and harassed her due to her race.  Although the parties disputed the facts, they agreed that Davis did not have authority to hire, fire, demote, transfer, promote, or discipline Vance, although she could direct Vance’s daily tasks.

The trial court concluded that, even if Vance’s factual allegations were true, the University could not be held strictly liable for Davis’ alleged creation of a racially hostile work environment because Davis was not empowered to make tangible employment decisions regarding Vance, and therefore was not a supervisor.  Other courts, however, had ruled inconsistently, finding that strict liability applies to “supervisors” who have the right to exert significant direction over another’s daily work, even if they cannot hire or fire.

The Supreme Court concluded that, while an employer will be held automatically liable for harassment perpetrated by employees who have the authority to hire, fire, promote, reassign, or make significant changes in benefit decisions with respect to other employees, they will not be automatically liable if, as in the Vance case, the “supervisor” can do no more than direct another employee in the performance of routine duties.  According to the Court, establishing a “bright line” test for determining supervisory status is essential to providing guidance to employers, employees, courts and juries in harassment cases.  The Court rejected the far more amorphous standard proposed by Vance.

This outcome is clearly favorable to employers, as it reduces the number of employees whose actions can result in automatic employer liability for workplace harassment.  That said, Arizona employers should nonetheless continue to be vigilant in preventing, investigating, and disciplining harassers.  Additionally, because employers can be held strictly liable for the actions of their supervisory employees, they must continue to draft and disseminate clear policies prohibiting racial, sexual, and other forms of unlawful harassment.  Supervisors and managers – and not just the most senior managers in an organization, but all supervisors who have authority to hire, fire, demote, and promote employees – should be trained on, and held accountable for complying with, these policies.  Complaints of harassment should be promptly escalated for investigation, and credible complaints of harassment should result in prompt disciplinary action against the harasser, up to and including termination.  Failure to do so could expose employers to substantial liability.  Arizona employers are therefore urged to review their current policies, amend those policies if and to the extent necessary, and consider implementing or refreshing manager training on harassment prevention.

Lawrence J. Rosenfeld is a partner and Laura Lawless Robertson is a senior associate at Squire Sanders in Phoenix.

Two attorneys become shareholders

25 Squire Sanders attorneys earn distinction

Squire Sanders announced that 25 of its lawyers were recognized in the 2013 edition of Southwest Super Lawyers, among them are:

* George Brandon, Business Litigation
* Brian Cabianca, Business Litigation, Intellectual Property Litigation, Class Action/Mass Torts
* D. Lewis Clark, Jr., Employment & Labor, Employment Litigation: Defense
* Joseph M. Crabb, Securities & Corporate Finance, Mergers & Acquisitions, Business/Corporate
* Peter W. Culp, Environmental, Energy & Natural Resources
* Craig D. Hansen, Bankruptcy & Creditor/Debtor Rights
* Charles E. James, Jr., Bonds/Government Finance
* Christopher D. Johnson, Mergers & Acquisitions, Securities & Corporate Finance, Bankruptcy & Creditor/Debtor Rights
* DavidW. Kreutzberg, Real Estate, Business/Corporate, Land Use/Zoning
* Jordan A. Kroop, Bankruptcy & Creditor/Debtor Rights
* Steven L. Lisker, Real Estate
* Daniel Pasternak, Employment & Labor
* Timothy E. Pickrell, Mergers & Acquisitions
* Frank M Placenti, Securities & Corporate Finance, Mergers & Acquisitions, Corporate Governance & Compliance
* Lawrence J. Rosenfeld, Employment & Labor, Health Care
* Thomas J. Salerno, Bankruptcy & Creditor/Debtor Rights, International, Alternative Dispute Resolution
* Christopher D. Thomas, Environmental, Environmental Litigation

Rising Stars Include:

* Jamie Daddona Brennan, Business/Corporate, Securities & Corporate Finance
* Jennifer R. Cosper, Bonds/Government Finance
* Gregory A. Davis, General Litigation
* Matthew M. Holman, Securities & Corporate Finance, Mergers & Acquisitions, Business/Corporate
* Laura Lawless Robertson, Employment & Labor
* Matthew Ohre, Business Litigation
* Sara K. Regan, Business Litigation
* Jacob B. Smith, Tax, Business/Corporate

law

2013 Top Lawyers list: Employment and labor

Az Business magazine’s 2013 top lawyer list was created after the editorial department asked Arizona law firms to nominate their two best attorneys from 16 different categories for consideration. Those nominees were put on a ballot and were voted on by their peers in the legal community and the readers of Az Business magazine to determine the exclusive 2013 Az Business Magazine Top Lawyers list.

Adrian L. Barton
Sacks Tierney P.A.
480-425-2629
www.sackstierney.com
Barton has several labor-related publications, including “Employee Voting Rights: Arizona Employer Obligations,” “Social Networking and the Workplace,” and “Reducing the Risk of Wrongful Termination.”

James L. Blair
Renaud Cook Drury Mesaros, PA
602-256-3020
www.rcdmlaw.com
Blair is his firm’s chair of the Employment Law and Litigation Practice Group and was a contributor to the “Compendium of Significant Employment-Related Case Law and Statutes,” ALFA International, from 2003-2009.

Joseph T. Clees
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
602-778-3700
www.ogletreedeakins.com
Clees represents employers throughout the United States in discrimination and wrongful discharge cases and labor relations.

Scott Gibson
Davis Miles McGuire Gardner, PLL480-344-0918
www.davismiles.com
Over the years, Gibson has developed a reputation for his uncanny ability to quickly discern the most important issues in a case and to focus on ways to resolve rather than to expand litigation.

Donald Peder Johnsen
Gallagher & Kennedy, P.A.
602-530-8437
www.gknet.com
Johnsen practices exclusively in the area of employment and labor law and has been listed in “The Best Lawyers in America” from 2007-2013.

Pamela L. Kingsley
Tiffany & Bosco, P.A.
602-255-6015
www.tblaw.com
Kingsley’s counseling and advice often includes drafting and analyzing agreements for employment and severance, confidentiality, non-competition, and non-solicitation; policies for sexual harassment and oppressive or violent conduct, drug testing, safety, absences, and disabilities.

Michael D. Moberly
Ryley Carlock & Applewhite
602-440-4821
www.rcalaw.com
Moberly is an elected Fellow of the College of Labor and Employment Lawyers, a national organization established to recognize those attorneys who have distinguished themselves as leaders in the fields of labor and employment law.

Tibor Nagy, Jr.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
520-575-7442
www.ogletreedeakins.com
Nagy represents employers in all facets of labor and employment relations law, including discrimination and wrongful discharge cases, wage and hour law, employment contracts and manuals, and labor-management relations.

Stephanie Quincy
Steptoe & Johnson LLP
602-257-5230
www.steptoe.com
Quincy maintains a regular case load of employment litigation matters. Cases include civil rights (race, age, religion, gender and disability), wrongful termination, sexual harassment, defamation, and breach of contract claims.

Deanna Rader
Gordon Rees
602-794-2460
www.gordonrees.com
Rader has extensive experience advising public employers on constitutional matters, personnel issues, student rights, conflicts of interest, open meeting law, due process under the Individuals with Disabilities Education Act, and public records issues.

Lawrence J. Rosenfeld
Squire Sanders
602-528-4886
www.squiresanders.com
Rosenfeld has more than 35 years of experience in the area of employment law and is a fellow of the College of Labor and Employment Lawyers.

Debora Verdier
Sanders & Parks, P.C.
602-532-5760
www.sandersandparks.com
Verdier counsels companies with an eye toward preventing disputes and providing pre-litigation solutions and has experience in defending employers against EEOC charges and in litigating employment disputes.