NLRB Ruling Opens Door for Unionizing Temp, Contract Employees; Outten & Golden’s Michael Scimone Explains

The issue of who counts as an employee is more important than ever in an economy increasingly dependent on temporary and contract labor. Recently, the NLRB issued a 3-2 decision in a case involving Browning-Ferris Industries of California that will permit unions to negotiate on behalf of fast food employees …

Brady’s Win over the NFL Is Likely to Be Upheld on Appeal, Says Outten & Golden Lawyer Tammy Marzigliano

LBN recently reported on Tom Brady’s victory over the NFL in the Deflategate case, vacating a four-game suspension previously upheld by NFL Commissioner Roger Goodell. In this report, employment law attorney Tammy Marzigliano of Outten & Golden LLP explains the legal basis for the federal judge’s ruling.   Marzigliano says …

Substantially Similar Jobs Don’t Have to Be Identical Jobs in Discrimination Cases

  Kathy Riser and QEP Energy were, respectively, the plaintiff and the defendant in a labor law case that was the subject of a recent opinion of the Tenth Circuit Court of Appeals. Labor lawyer Paul Mollica reports what Riser v. QEP Energy has to say about the Equal Pay …

Title I, ADA—When Is a Medical Exam a Business Necessity?

Kroll v. White Lake Ambulance Authority is a 6th Circuit case that adds to the slim body of law on when an employer’s medical examination “may be deemed job-related and consistent with business necessity” under 42 U.S.C. §12112(d)(4)(A). Employment lawyer Paul Mollica discusses the case, which was also covered in …

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NLRB Ruling Opens Door for Unionizing Temp, Contract Employees; Outten & Golden’s Michael Scimone Explains

September 15, 2015 Uncategorized No Comments


The issue of who counts as an employee is more important than ever in an economy increasingly dependent on temporary and contract labor. Recently, the NLRB issued a 3-2 decision in a case involving Browning-Ferris Industries of California that will permit unions to negotiate on behalf of fast food employees and others that rely on contract employees and employees of franchisees. The decision held that Browning-Ferris was a joint employer and was required to negotiate with the Teamsters.

Michael Scimone

Michael Scimone

The decision changes the law of joint employment. Many businesses have strongly opposed the ruling and have called on Republicans in Congress to reverse the Board’s ruling. Labor lawyer Michael Scimone of Outten & Golden LLP discusses the ruling and its long-term implications in this report.

Scimone says that the Board’s ruling is “a big step forward for workers,” especially for non-traditional employees. Scimone says that about 5.7 million workers are in contingent employment, about 4.1% of all employment in the country. Temporary work has nearly doubled from 1990 to 2008. Collective bargaining and unionizing will be much more meaningful for these workers because companies with ultimate control over wages and working conditions will have to bargain.

As to the ruling’s effect on non-union businesses, Scimone points out that these entities always have the potential to become union entities. For workers in a non-union enterprise, “the odds of being able to organize a union become much better.” Non-union subcontractors will have to take account of the possibility that union organization is possible.

Scimone says that the ruling will have an effect where there is already organizing going on because the joint employer, the prime contractor, can in some circumstances be held liable for unfair labor practices. Interfering with attempts to organize may get a company in trouble. “The process of organizing will be much fairer.”

In a related development, President Obama recently signed an executive order requiring paid sick leave for employees of federal contractors. Scimone suggests that this will not have an unfavorable effect on small businesses. Companies that do business with the federal government find a way to make it work, Scimone says. Paid sick leave is a more effective solution than allowing sick people to come to work and infect other employees.

Michael J. Scimone is an associate at Outten & Golden LLP. He represents employees in class and collective actions, focusing primarily on wage and hour litigation. He received his J.D. from the City University of New York School of Law in 2009, where he represented employees in wage and hour cases through CUNY’s Immigrant and Refugee Rights Clinic. Before law school, Mr. Scimone worked as an organizer for UNITE, an international union representing garment, laundry, and industrial workers in North America. The Employment Law Channel is a featured network of Sequence Media Group.

Brady’s Win over the NFL Is Likely to Be Upheld on Appeal, Says Outten & Golden Lawyer Tammy Marzigliano

September 15, 2015 Uncategorized No Comments


LBN recently reported on Tom Brady’s victory over the NFL in the Deflategate case, vacating a four-game suspension previously upheld by NFL Commissioner Roger Goodell. In this report, employment law attorney Tammy Marzigliano of Outten & Golden LLP explains the legal basis for the federal judge’s ruling.

 

Tammy Marzigliano

Tammy Marzigliano

Marzigliano says that, under the collective bargaining agreement between the NFL and its players, Brady was required to appeal the decision handed down in arbitration. Once Brady had appealed the decision, the NFL sought to confirm the decision in the U.S. District Court for the Southern District of New York. Then Brady, through the NFL Players Association, made a motion that the court vacate the decision.

After reviewing all the documents, Judge Richard M. Berman vacated the suspension on three grounds. The first ground was inadequate notice as to potential discipline and his alleged misconduct. In other words, says Marzigliano, Brady had no notice that the alleged partial deflation of a football could get him suspended for four games. Without notice, the suspension was not fair and proper.

The second ground for the federal judge’s decision is that Brady was denied the opportunity to examine one of the two lead investigators for the NFL, its general counsel, Jeffrey Pash, who edited the report on which the suspension was based. Marzigliano notes that the court held this denial was a violation of the fundamental fairness that is part of our legal system. People get the right to confront their accusers. The third ground for the court’s decision was that Brady was denied access to the League’s investigative notes.

The NFL has appealed the district judge’s decision. Marzigliano opines that Judge Berman wrote a comprehensive, well-reasoned decision that will likely be upheld on appeal. The decision is important for labor law because it “shines a spotlight on arbitrators’ decisions.” Marzigliano says the decision makes it clear that, despite the great deference given to the decisions of arbitrators, reviewing courts will not simply rubber stamp those decisions.

Tammy Marzigliano is a partner at Outten & Golden LLP, New York City, where she represents employees in litigation and negotiation in all areas of employment law, including employment contracts, arbitration matters, whistleblower claims, and individual discrimination cases. She is the Co-Chair of both Outten & Golden’s Financial Services Practice Group and its Whistleblower and Retaliation Practice Group. She is also a member of Outten & Golden’s Executive and Professionals Practice Group and former Co-Chair of its Sex Discrimination and Sexual Harassment Practice Group. She has also been recognized in Super Lawyers New York Metro edition for 2013. The Employment Law Channel is a featured network of Sequence Media Group.

Substantially Similar Jobs Don’t Have to Be Identical Jobs in Discrimination Cases

February 6, 2015 Uncategorized No Comments

 

Kathy Riser and QEP Energy were, respectively, the plaintiff and the defendant in a labor law case that was the subject of a recent opinion of the Tenth Circuit Court of Appeals. Labor lawyer Paul Mollica reports what Riser v. QEP Energy has to say about the Equal Pay Act and Title VII of the Civil Rights Act of 1964. The case is also the subject of an article in the Employment Law Blog.

Riser sued QEP for discrimination against her for discrimination on the basis of gender and age. Mollica points out that Riser’s claim was primarily based on the Equal Pay Act, which forbids employers from paying women less than men for doing work that is substantially equal. In this case, Ms. Riser was a fleet administrator for QEP and also did some facilities management, for which she was paid a little more than $47,000 yearly. Later, the company hired a man to do about the same work, and he was paid $62,000 yearly. The company had no explanation for this.

paul_mollicaLater, when Ms. Riser separated from the company, a man was hired to take over her duties, and he was paid $66,000 per year. Mollica notes that the men were paid 30-40% more than Ms. Riser was being paid. When Ms. Riser’s lawsuit was heard in the U.S. district court, the judge decided that the work the men were doing was not substantially equal to what Ms. Riser had been doing. On appeal, the Tenth Circuit held that the record did not really provide enough information to make that determination. The employer has to demonstrate to a jury that there was a basis other than gender to make the distinction, and the case was remanded for that purpose.

Mollica thinks that the district court’s summary judgment ruling was largely the result of habitual thinking on the part of district courts that “substantially the same” means that people have to be performing identical work—like an assembly line job—in order for there to be discrimination. The Tenth Circuit’s opinion holds that the rule is never that strict. Sometimes, an employee will have additional duties in a job that another employee does not have. If these duties were just add-ons and the basic jobs were the same, the jobs are substantially similar.

Paul W. Mollica joined Outten & Golden LLP as Of Counsel in 2010. He is a frequent author and lecturer (for lawyers and courts) in the area of employment discrimination. He is a two-term past president of the Chicago Council of Lawyers, a public-interest bar association. He has been selected as a Super Lawyer© in Illinois and has the highest, AV© rating from Martindale-Hubbell. He is licensed to practice in Illinois and New York. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Title I, ADA—When Is a Medical Exam a Business Necessity?

August 27, 2014 Uncategorized No Comments

Kroll v. White Lake Ambulance Authority is a 6th Circuit case that adds to the slim body of law on when an employer’s medical examination “may be deemed job-related and consistent with business necessity” under 42 U.S.C. §12112(d)(4)(A). Employment lawyer Paul Mollica discusses the case, which was also covered in his employment blog.

paul_mollicaThe long-running case concerns the problems of an EMT employed by the ambulance authority. In this case, the ambulance authority required Ms. Kroll to receive counseling after she was observed having angry outbursts at her workplace. The ADA generally prohibits such medical exams unless the “job-related” and “business necessity” tests are met.

The case was the subject of an initial summary judgment that went to the 6th Circuit, which sent the case back for further proceedings. On the remand, the district court again granted summary judgment, this time holding “that the proposed examination met the job-relatedness and business-necessity standards.”

On the second appeal, the 6th Circuit concluded that these findings needed to be made by a jury. The appellate court noted that there was no evidence of any kind of medical support for the decision that Ms. Kroll needed to go into counseling. Another thing the court noted was that her supervisor had not indicated that there was a business or professional reason for this, but rather that he had a concern about her personal welfare.

Mollica says that it was a mistake, in the view of the 6th Circuit, to condition her employment on receiving the counseling. The supervisor’s good intentions should not be conflated to a business reason for the counseling.

Paul W. Mollica joined Outten & Golden LLP as Of Counsel in 2010. He is a frequent author and lecturer (for lawyers and courts) in the area of employment discrimination. He is a two-term past president of the Chicago Council of Lawyers, a public-interest bar association. He has been selected as a Super Lawyer© in Illinois and has the highest, AV© rating from Martindale-Hubbell. He is licensed to practice in Illinois and New York. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Reasonable Accommodation Expands Under the Rehabilitation Act

August 27, 2014 Uncategorized No Comments

Unconventional work scheduling as a “reasonable accommodation” has been the subject of several appellate decisions in the last eighteen months. The latest one, Solomon v. Vilsack, deals with flextime scheduling. Employment lawyer Paul Mollica discusses the case in his employment law blog and in this report.
paul_mollica The reasonable accommodation requirement runs counter to the notion that regular attendance at work is an “essential function” that employers are entitled to expect. The Solomon case deals with a Department of Agriculture employee who suffered from depression and who had been accorded a flexible work schedule to cope with the issues of her condition and medical treatment for it. The dispute arose when new supervisors refused to extend the flextime arrangement.
The D.C. Circuit held that “the agency may have erred in refusing to fully accommodate Ms. Solomon’s need to work on a flexible schedule.” The decision noted the increasing ease of working at home. Mollica says that the decision gives employers notice that timely attendance at work is no longer something courts will automatically affirm as an essential function.
The development of the Internet and the increasing ease of telecommuting will doubtless have a growing influence on attendance at work cases. Some jobs, such as flying a plane, will always require physical presence at work. Others, like clerical and administrative functions, will not.
Paul W. Mollica joined Outten & Golden LLP as Of Counsel in 2010. He is a frequent author and lecturer (for lawyers and courts) in the area of employment discrimination. He is a two-term past president of the Chicago Council of Lawyers, a public-interest bar association. He has been selected as a Super Lawyer© in Illinois and has the highest, AV© rating from Martindale-Hubbell. He is licensed to practice in Illinois and New York. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Summary Judgments in Employment Cases—Too Often?

August 13, 2014 Uncategorized No Comments

Summary Judgments in Employment Cases—Too Often? from Sequence Media on Vimeo.

Employment lawyer Paul Mollica discusses an employment discrimination case involving a summary judgment. The case, Malin v. Hospira, Inc., is the subject of a recent post in the Employment Law Blog.
paul_mollicaThe facts of the case are rather complex and worth a read. But the plaintiff’s case presented a Title VII claim and a Family and Medical Leave Act claim. Hospira’s lawyers filed for summary judgment, a common practice in employment discrimination cases. In these situations, the trial judge is presented with hundreds, perhaps thousands, of pages of material plus the briefs of counsel for the parties. In this case, the trial judge sustained the motion, and the plaintiff appealed. The 7th Circuit reversed.
On the Title VII claim, Mollica explains, the trial court applied a “commonly-cited principle” that a long gap between the protected action and the adverse action negates any inference that the actions are connected. The appellate court cautioned that this guideline should not be mechanically applied. The court noted that “the record contains ample evidence to support the inference that Hospira retaliated against Malin for her 2003 sexual harassment complaint when it carried out the 2006 reorganization.”
As to the FMLA claim, the appellate court decided that the trial court had erred in its analysis of the timeline. Again, the appellate court concluded that there was a question for a jury to decide.
The court made a point of telling counsel that misuse of summary judgment practice was a mistake. “We caution Hospira and other parties tempted to adopt this approach to summary judgment practice that it quickly destroys their credibility with the court.”
Paul W. Mollica joined Outten & Golden LLP as Of Counsel in 2010. He is a frequent author and lecturer (for lawyers and courts) in the area of employment discrimination. He is a two-term past president of the Chicago Council of Lawyers, a public-interest bar association. He has been selected as a Super Lawyer© in Illinois and has the highest, AV© rating from Martindale-Hubbell. He is licensed to practice in Illinois and New York. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Mismanagement of 401(k) Plan—Standard of Fiduciary Duty

August 13, 2014 Uncategorized No Comments

Mismanagement of 401(k) Plan—Standard of Fiduciary Duty from Sequence Media on Vimeo.

The Fourth Circuit Court of Appeals recently reversed a district court decision and held corporate fiduciaries liable for losses to 401(k) plan. Employment lawyer Paul Mollica comments on the case, which was a subject of his blog posting “Tatum v. RJR Investment Committee, No. 13-1360 (4th Cir. Aug. 4, 2014).”
paul_mollicaMollica notes that 401(k) plans in the U.S. hold some $4 trillion in assets, affecting the potential retirement funds of most Americans. So the fiduciaries who manage these plans are trusted to manage these funds as if they were managing their own money.
In this case, RJR (the entity formed when R.J. Reynolds tobacco bought Nabisco) was in the process of spinning off the tobacco part of the entity. The plan managers decided to wind up the plan, freeze it, and then sell off the tobacco shares. The decision was the result of only thirty minutes of deliberation. The problem was that the shares were sold when the shares were at their lowest value, so the plan lost a great deal of money. Those who had shares in the Nabisco fund were hurt by this decision.
One of the big questions became the nature of the fiduciaries’ burden at trial. The trial judge held that they only had to prove that “prudent fiduciary under the same circumstances could have decided” to freeze the plan. But the Fourth Circuit disagreed, holding that the standard was that a prudent fiduciary “would have” made the same decision, Mollica explains. The case was sent back to the district for further consideration in light of the appellate court’s ruling.
The decision of the Fourth Circuit puts the burden of proof on the defendants in this case.
Paul W. Mollica joined Outten & Golden LLP as Of Counsel in 2010. He is a frequent author and lecturer (for lawyers and courts) in the area of employment discrimination. He is a two-term past president of the Chicago Council of Lawyers, a public-interest bar association. He has been selected as a Super Lawyer© in Illinois and has the highest, AV© rating from Martindale-Hubbell. He is licensed to practice in Illinois and New York. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Ford Motor Company vs. EEOC, With Paul Mollica, Employment Attorney, Outten and Golden, New York

In Ford Motor Company vs. the EEOC, the 6th Circuit was deciding whether a telecommuting arrangement could be a reasonable accommodation for an employee suffering from a debilitating disability.  Paul Mollica, an employment law attorney with Outten and Golden in New York has written about this case in his employment law blog and has been interviewed by the Employment Law Channel to discuss the case further.

Ford Motor Company employee Jane Harris had filed a charge that prompted the EEOC’s lawsuit.  Ms. Harris had irritable bowel syndrome, which made it difficult for her to commute and be at work because it caused fecal incontinence.  She tried to work out a telecommuting arrangement with Ford to do her job, which was supplying steel to parts plants and she was part of a sales team.

Ford evaluated the situation and determined the employee couldn’t do the job by telecommuting four times a week, as suggested by Ms. Harris.  They refused to discuss that option but did discuss moving her location at work closer to a bathroom, which didn’t solve the commuting issue.  However, in Ford’s views, reassigning her to a different position doing something else that was more compatible with telecommuting was an acceptable alternative.

Mollica says that the issue for the 6th Circuit, which was reviewing a grant summary judgement, was whether regular attendance physically in the workplace was an essential function of her job and whether telecommuting might be a reasonable accommodation for her disability.

On the first issue of whether Ms. Harris could physically attend work, the 6th Circuit recognized that there were already a lot of of laws that said regular attendance at work is generally considered an essential function of the job.  They also noted that early in the history of the Americans with Disabilities Act that times have changed, and in this case, there was a lot of evidence that employees could perform the job remotely.  In fact, several other people in her unit were already telecommuting, which was an important factor in deciding whether they could provide this reasonable accommodation.

There was also the question of whether telecommuting itself was a reasonable accommodation and the court held there was evidence the job could be performed remotely.  Since a lot of the work involved going to the clients, rather than into the workplace at Ford Motor, it was possible for Ms. Harris to travel from home and make the appointments with the vendors outside of the workplace.  Again, Ford Motor had let other employees telecommute.

According to Mollica, the court didn’t say the four times a week telecommuting was required under the ADA, but rather that Ford Motor at least owed Ms. Harris an interactive process to discuss that accommodation.  By failing to discuss anything other than entirely removing her from work, they potentially violated her rights under the ADA and the court said it was up to a jury to decide if Ford Motor acted correctly.

After Ms. Harris filed her complaint with the EEOC, Mollica says that she began facing tightened scrutiny and she said it was all performance-related.  The 6th Circuit’s opinion reflect that in fact, Ms. Harris had a history of sub-par evaluations in some areas, however, from their vantage point, there was evidence the decision was retaliatory.  She was the subject of  more and more scrutiny and subject to a performance improvement plan only shortly after she complained to the EEOC and the court determined that it was up to a jury to decide if that was retaliatory.

A lot of law early in the ADA that suggested that by telecommuting and other forms of scheduling to benefit those with disabilities was really off the table, believes Mollica.  He explains that the 6th Circuit notes that the way employees use the workplace and technology today forces us to rethink whether those same technological advances  should be used to allow disabled individuals to work remotely when possible.

An author and lecturer in the area of employee discrimination, Paul Mollica joined Outten and Golden in 2010 as an employment law attorney.  More information about Mollica can be found here.  To read further on Ford Motor Company vs. EEOC, visit Mollica’s blog.   Mollica spoke with the Employment Law Channel, providing online, on-demand, employment law video content.  The Employment Law Channel is a featured network of Sequence Media Group.

 

Man Sues Employer For Wrongful Termination After Court Decides His Disability Falls Within Amended ADA, With Paul Mollica, Outten and Golden

April 24, 2014 Uncategorized No Comments

 

Anthony Mazzeo, an employee for Color Resolutions International, a color dye company, suffered a back injury which restricted him in being able to do his job in sales. He couldn’t lift more than 10 pounds and prepared himself for a surgery to correct his back pain. After informing his employer and requesting time off for the surgery, his boss started the paperwork to fire him and two days before his scheduled surgery, he was terminated from the company.

Mazzeo brought his claim to District Court, claiming he was terminated because of his disability and age. He was 46 at the time and his replacement was 23. The District Court dismissed his claims, focusing on the disability claim and held that he wasn’t really disabled under the American Disabilities Act. The court ruled he was not substantially limited in one ore more major life activities, says Paul Mollica, employment attorney with Outten and Golden in New York.

Mollica explains that the District Court relied on case law developed under the old ADA before Congress amended it in 2010, which was passed in response to a number of Supreme Court and other judicial rulings that severely limited the definition of who was substantially limited in one or more major life activities. The 11th Circuit realized that even though the District Court was relying on pre-ADA law, that the ADA was now quite different. By requiring a more generous and forgiving interpretation, the 11th Circuit revisited the old law and concluded that under the new ADA, a lift restriction that prevented Mazzeo from doing his job did substantially limit him, as it now meant something more generous than the prior law.

Mollica thinks this case will turn out to be important for both employees with disabilities and human resource executives in understanding that the law that was developed under the old ADA guidelines was recently transformed by Congress.

In Mazzeo’s case, he will get a trial and a jury will get to decide these questions, which is what Congress intended with the ADA amendment.

Paul Mollica is counsel for Outten and Golden LLP, a law firm focusing on employment law. For more information on Paul Mollica, click here. For more information on this case, go to the Employment Law Blog.  Paul’s commentary was hosted by the Employment Law Channel, part of The Legal Broadcast Network, a featured network of Sequence Media Group.

Sexual Harassment Case Involving Sheriff’s Office, With Paul Mollica, Employment Lawyer at Outten and Golden, Chicago, Illinois

March 20, 2014 Uncategorized No Comments

In the case Kramer vs. Wasatch County, in Utah, it is much more than a sexual harassment case, says employment attorney Paul Mollica, of Outten and Golden in Chicago, Illinois. Kramer, the employee and plaintiff in the case, claims she was sexually assaulted by a Sergeant, who also happened to be her manager in the office, who gave her job assignments, evaluated her performance and otherwise had day to day control over her work.

The difference between this and other kinds of employers, says Mollica, is that the Commanding Officer, the Sergeant, is the one who makes the decisions about hiring and firing. In this case, where the employee was severely harassed by this Sergeant and intimidated by him, she decided to not say anything until she was injured in a car accident and subsequently asked some colleagues to report her complaints to Human Resources. The Sheriff’s Office then began to investigate the serious allegations.

Unfortunately, the investigation took a bad turn in that instaed of focusing on the allegations against the Sergeant, they investiaged a supposed extra-martial affair the complaining employee had with another colleague. Instead of an effort to correct and prevent harassment, they targeted the employee for disciplinary action for violating work rules, says Mollica. The Sheriff’s Office said she didn’t complain about it until long after most of the harassment had occurred and that they weren’t responsible for the harassment they didn’t know about.

The 10th Circuit held that the County would be responsible for the employee’s harassment because even though the Sheriff wasn’t the direct supervisor of the employee, his conduct could still be related back to the Sheriff’s Office because he exercised control over the employee in important ways. The Court also made the point that the County made it appear as if the Sergeant had that kind of hiring and firing authority over the employee.

The reason Mollica usually stresses with employee that they should report harassment is that generally, it’s the only way things are going to change in the workplace when it involves supervisors. Mollica says this case reminds us that an employee doesn’t have to prove anything about their negligence or failure to report unless the employer had a policy in place that could correct and prevent harassment and it was reasonable or unreasonable for the employee to use it. In this case, not only was the employee very severely threatened by the Sergeant, but also there was evidence the Sergeant had a comfortable relationship with the individuals investigating the claim. Mollica says she tried to file other complaints in the past but was humiliated by the Commanding Officer in front of other employees.

Mollica says it helps to mention sexual harassment to other co-workers if the case goes to a trial, so the jury can hear that, but in the eyes of the law, Mollica says it’s always better to report complaints through the channels the company provides, which is usually Human Resources. Mollica says that this case reflects that not every case is the ideal case.

Paul Mollica is an employment attorney with Outten and Golden in Chicago, Illinois. For more information on him, click here and for more information on this case that Mollica has written about, click here. He spoke with the Employment Law Channel, an affiliate of the Legal Broadcast Network, providing online, on-demand, legal video content. Both networks are part of Sequence Media Group.

Dispelling Sexual Harassment Myths

Only women can be harassed.

This is not true. Courts have previously ruled that a man can be harassed by a woman, although such a situation is slightly more rare than a male harassing a woman.

A woman can't harass another woman and a man can't harass another man.

This is not true. The U.S. Supreme Court has recognized that illegal sexual harassment can occur between people of the same sex.

Sexual harassment can only occur in a workplace.

This is not true. The U.S. Supreme Court has ruled that teachers, professors, and other individuals with authority in school systems (including universities and colleges) can sexually harass students in violation of the law. While the case was decided under Title IX of the Education Amendments of 1972, rather than Title VII of the Civil Rights Act of 1964 the implication was the same: a teacher can sexually harass a student.

Only supervisors or those in authority positions can be a harasser.

This is not true. A harasser can be a coworker and, in some cases, a third party such as an agent or client of the employer. The key is whether the employer knew or should have known of the harassing behavior and failed to take action.