Sec. 2. Findings and purposes

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Congress finds the following: Harassment is a widespread problem in workplaces in the United States. Surveys indicate that at least one-fourth of all working women and 10 percent of men have experienced sexual harassment on the job. In fiscal year 2013, a combined total of over 30,000 harassment charges were filed with the Equal Employment Opportunity Commission and State fair employment practices agencies. More than 10,000 of these charges involved sexual harassment. Women and people of color working in low-wage jobs are particularly vulnerable to harassment in the workplace.

In some industries harassment is even more widespread. For example, 80 percent of female farm-workers working in the fields in central California reported that they had experienced sexual harassment. Studies indicate that sexual harassment of women, including unwanted touching, grabbing, and stalking, is also common in male-dominated industries, such as construction, public safety, manufacturing, farming, and the high-tech industry. Harassment in male-dominated industries operates as a barrier to women’s entry into higher-paying jobs.

Racial harassment remains a pervasive problem in the workplace in the United States. In fiscal year 2013, more than 11,000 of the charges of harassment filed with the Equal Employment Opportunity Commission and State fair employment practices agencies were charges of racial harassment. Research shows that workers in a wide spectrum of occupations, ranging from service and support positions to management and professional positions, report experiencing race-based harassment while on the job.

Harassment in the workplace is a persistent barrier to opportunity for people with disabilities. Harassment can result in workers with disabilities being forced off the job. Workplace harassment is used to send the message that workers with disabilities do not belong at work. Age discrimination continues to be a barrier to employment for older workers. Over one-third of older workers report that they or someone they know experienced age discrimination in the workplace. Three quarters of older Americans surveyed are concerned that age may be an obstacle to finding work.

The Supreme Court’s decision in Vance v. Ball State University, No. 11–556, (June 24, 2013) significantly undermines protections against discrimination that the Supreme Court established in Faragher v. Boca Raton, 524 U.S. 775

(1998)and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), which held that an employer may be vicariously liable under title VII of the Civil Rights Act of 1964 for harassment of an employee by an individual that has supervisory authority over that employee. In Faragher and Ellerth, the Supreme Court held that employers will be subject to a strict liability standard when employees with supervisory authority engage in harassment that results in tangible employment actions. However, in situations where supervisors engage in harassment that does not result in tangible employment actions, the Court explained, an employer can avoid vicarious liability by showing that— the employer exercised reasonable care to prevent and correct any harassing behavior; and the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Whether an employer should be vicariously liable for harassment is a functional analysis that is based not on the title of the harasser or the employer’s job description for the harasser’s position but on the authority vested in that individual by the employer. The Supreme Court holding in Vance limits the category of individuals who are considered supervisors and for which an employer may be held vicariously liable under Faragher and Ellerth to those individuals that have authority to take tangible employment actions. This holding ignores the reality that employees with the authority to control their subordinates’ daily work should be included in that category, for which an employer may be held vicariously liable, because such individuals are aided by that authority in perpetuating a discriminatory work environment. Individuals who direct the daily work activities of employees but do not have the authority to take tangible employment actions against those employees are common in the workplace in the United States, particularly in industries that employ low-wage workers. Workers in industries including retail, restaurant, health care, housekeeping, and personal care, which may pay low wages and employ a large numbers of female workers, are particularly vulnerable to harassment by individuals who have the power to direct day-to-day work activities but lack the power to take tangible employment actions. The purpose of this Act is to clarify that an employer’s vicarious liability for harassment under title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, the Rehabilitation Act of 1973, section 1977 of the Revised Statutes, the Genetic Information Nondiscrimination Act of 2008, the Government Employee Rights Act of 1991, the Congressional Accountability Act of 1995, and title III of the United States Code extends to— an individual with the authority to undertake or recommend tangible employment actions affecting the victim of the harassment; or an individual with the authority to direct the victim’s daily work activities.

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524 U.S. 775
524 U.S. 742

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Sec. 2

Findings and purposes

SCOTUS524 U.S. 775

SCOTUS524 U.S. 742

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