Fifteen years after the U.S. Supreme Court held that employers can be held strictly liable under Title VII of the Civil Rights Act for harassment or discrimination by their supervisors, the Court is prepared to answer the question: “who is a supervisor?” The Court will decide the question when it rules on Vance v. Ball State University, 646 F.3d 461 (7th Cir. 2011), cert. granted, 133 S. Ct. 23 (U.S. 2012), which was argued on November 26, 2012.
The answer to this question is critical because of the Supreme Court’s decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). In determining an employer’s potential liability for harassment under Title VII, the Supreme Court’s holdings in Faragher and Ellerth created a distinction between harassment by a “supervisor” as opposed to that by a mere co-worker. The Court held that employers are strictly liable for harassment inflicted by “supervisors,” although employers can assert an affirmative defense when the harassment by a “supervisor” did not result in a tangible employment action. However, where the harassment or hostile work environment is created by a co-worker, an employer is not liable unless the complaining employee can prove the employer was negligent in failing to discover the harassment or was negligent in remedying the harassment once discovered. Therefore, whether an alleged harasser is a “supervisor” or mere “co-worker” often is determinative in analyzing employer liability in a Title VII case.
The Supreme Court has never defined who qualifies as a “supervisor” for purposes of imposing liability on an employer in Title VII harassment and hostile work environment claims. As a result, the federal circuit courts of appeal have developed different standards and reached different conclusions regarding how much authority an employee must have over another employee to be considered a “supervisor.”
The Second, Fourth, Ninth, and Tenth Circuits construed supervisory status broadly in this context. For instance, in Whitten v. Fred’s Inc., 601 F.3d 231 (4th Cir. 2010), the Fourth Circuit held an employee (harasser) who lacked the power to hire, fire, demote, promote, or otherwise make decisions that had an economic effect on another employee could still be considered a supervisor. The critical question, according to the Whitten Court, is whether the employee’s alleged harassing conduct “is aided by the agency relation.” The Fourth Circuit made clear that “employees with only some measure of supervisory authority” could be aided by the agency relation such that they should be considered “supervisors,” and imposing vicarious liability on the employer for their conduct would be proper. The Whitten Court held, “The determinant is whether as a practical matter [the harasser’s] employment relation to the victim was such as to constitute a continuing threat to her employment conditions that made her vulnerable to and defenseless against the particular conduct in ways that comparable conduct by a mere co-worker would not.” It noted that such non-tangible employment actions by the harasser included giving the employee a list of tasks to accomplish, controlling her schedule, and giving her undesirable assignments. This position is essentially consistent with Equal Employment Opportunity Commission guidance, which provides that an individual qualifies as an employee’s supervisor if the individual: (1) has authority to undertake or recommend tangible employment decisions affecting the employee; or (2) has authority to direct the employee’s daily work activities. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, § III.A, No. 915.002 (June 18, 1999).
The First, Seventh, and Eighth Circuits, on the other hand, have taken a narrower view of who should be deemed a “supervisor.” In Vance, the case before the Supreme Court, for example, the Seventh Circuit held that to be considered a “supervisor” for purposes of imposing vicarious liability on an employer under Title VII, an employee must have the “power to directly affect the terms and conditions of the plaintiff’s employment,” which “primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee.” Thus, in these Circuits, an employee who directs and oversees another employee’s job duties on a regular basis likely would not be considered a “supervisor” unless she has the power to make tangible, primarily economic, decisions about that employee’s terms of employment.
Vance v. Ball State University
Vance is a good example of how the differing standards may affect the outcome of a case. Maetta Vance, a black employee in Ball State University’s catering department, brought a Title VII hostile work environment claim against the University based on the actions of several fellow employees, including Saundra Davis. Vance alleged that Davis hit her, threatened her, and made racially disparaging comments toward her on multiple occasions. Vance also alleged that Davis held and utilized the “authority to tell [Vance] what to do.” The Seventh Circuit found this proffered evidence of supervisorystatus insufficient. It held that because there was no evidence Davis had the power to “hire, fire, demote, promote, transfer, or discipline” Vance, Davis did not have sufficient power to be her supervisor and thereby her conduct cannot be imputed to the University. The Seventh Circuit directly rejected the invitation to “join other circuits in holding that the authority to direct an employee’s daily activities establishes supervisory status under Title VII.”
Supreme Court Oral Argument
At the November 26 oral argument, Justice Elena Kagan, likely referencing her experience as Dean of Harvard Law School, made the following comment, highlighting the need for a broad interpretation, “Professors don’t have the ability to fire secretaries, but professors do have the ability to make secretaries’ lives living hells.” Remarkably, none of the attorneys who argued the case, even Ball State University’s attorney, challenged that viewpoint, and all appeared to agreed that an employee who directs other employees’ day-to-day activities may be a supervisor under Title VII, even if the individual lacks the authority to take tangible action against other employees.
Ball State University’s attorney, however, argued that even under this broader standard, based on the factual record, Davis would not qualify as Vance’s supervisor. This prompted Justice Antonin Scalia to ask, “So there is nobody here defending the Seventh Circuit?” There were, however, a number of justices in the room that appeared to defend the Seventh Circuit’s standard. Chief Justice John Roberts and Justice Samuel Alito expressed concerns that the broader standard articulated by the EEOC and the Second, Fourth, Ninth, and Tenth Circuits does not provide a bright-line rule, like that articulated by the Seventh Circuit, to sufficiently aid lower courts. Chief Justice Roberts noted the benefit of the Seventh Circuit’s bright-line standard was that it avoided requiring courts to make case-by-case determinations. Justice Anthony Kennedy also suggested that the Seventh Circuit’s standard might be the best answer when coupled “with an increased duty of care on the part of the employer to take the necessary steps to prevent forbidden harassment.”
If Court Adopts a Broad Definition
The Supreme Court is expected to decide Vance by June, when its term ends. If the Supreme Court adopts the broader standard articulated by the EEOC, the Fourth Circuit, and several Circuit Courts, the scope of employer liability for harassment will expand. Such a broad standard would mean that many lower-level employees, whom employers have not traditionally classified as “supervisors,” will qualify as “supervisors” under Title VII. As a result, employers likely will find themselves subject to more claims of discrimination and harassment and will have increased exposure for such claims. Thus, if a broad standard is adopted, employers should immediately review their operations, reevaluate job descriptions for certain employees, and carefully consider future hiring and promotion decisions. Employers also should consider conducting additional and expanded training on harassment prevention and reporting harassment in the workplace.