This week, in Vance v. Ball State University, No. 11-556, the U.S. Supreme Court addressed the oftentimes contested issue of who qualifies as a "supervisor" for purposes of harassment claims under Title VII of the Civil Rights Act of 1964. Resolving a split among various Circuit Courts of Appeals, the Court held that a "supervisor" is someone authorized by the employer to take tangible employment actions such as hiring and firing, and not someone who merely directs or oversees another’s daily work.
Under Title VII, if the harasser is a "supervisor" and the harassment culminates in a tangible employment action, the employer is automatically liable. If the harasser is a supervisor but no tangible employment action occurs, an employer may escape liability by establishing that (1) it exercised reasonable care to prevent and correct harassment and (2) the plaintiff unreasonably failed to take advantage of preventive or corrective measures proffered by the employer. On the other hand, if the harasser is simply a co-worker of the victim, the employer is liable only if the victim proves that the employer was negligent in controlling working conditions; i.e., the employer knew or should have known of the harassment and failed to take adequate steps to stop it. Therefore, the definition of a "supervisor" has significant implications for employer liability for harassment under Title VII.
Here, the plaintiff, Maetta Vance, was employed by the defendant Ball State University in its banquet and catering department. Vance alleged that a fellow employee, Saundra Davis, subjected her to a racially hostile work environment by making discriminatory remarks about Vance’s race and ethnicity, among other things. Although Davis oversaw the performance of some of Vance’s work, Davis did not have the power to hire, fire, demote, transfer, or discipline Vance.
The District Court granted Ball State's motion for summary judgment, finding that Davis was not Vance’s "supervisor" and that Ball State was not negligent in controlling working conditions. The Seventh Circuit affirmed, reasoning that supervisor status requires "the power to hire, fire, demote, promote, transfer, or discipline an employee."
Vance argued that the Supreme Court should reverse the Seventh Circuit's decision as inconsistent with prior Supreme Court precedent. In addition, Vance emphasized that three other circuits, the Second, Fourth, and Ninth, had reached the opposite conclusion, finding that a "supervisor" is any individual who has the authority to direct and oversee the performance of an employee's day-to-day work. The test applied by these three circuits for determining supervisor status is the same standard utilized by the Equal Employment Opportunity Commission.
By a 5-4 vote, the Supreme Court held that "an employee is a 'supervisor' for purposes of vicarious liability under Title VII if he or she is empowered to take tangible employment actions against the victim." Writing for the majority, Justice Alito explained that the harassment framework developed by the Supreme Court draws a sharp distinction between co-workers and supervisors and implies that the authority to take tangible employment actions is the "defining characteristic of a supervisor."
Moreover, Justice Alito emphasized that this bright-line test for determining supervisor status is easy to apply and has the significant advantage of providing employers and employees alike with clear notice of who will qualify as a "supervisor." According to Justice Alito, Vance's vague and undefined proposed standard, by contrast, would require courts to engage in an intensive, fact-sensitive and time-consuming analysis on a case-by-case basis, and would provide employers and employees with little guidance on who would qualify as a "supervisor" under a given set of circumstances.
Justice Alito also noted that the narrower definition would not leave employees unprotected against harassment by co-workers who possess the authority to assign and oversee the performance of daily tasks. In such cases, the victim can still prevail by showing that the employer was negligent in allowing the harassment to occur or continue, as applicable. Importantly, Justice Alito added that the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor in determining negligence.
The upshot of Ball State is that employers are vicariously and strictly liable for an employee's harassment only when the employer has authorized that employee to take tangible employment actions against the alleged victim; i.e., hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. The narrow definition of "supervisor" adopted by the Court will likely allow the issue of an alleged harasser’s status to be decided frequently as a matter of law during the summary judgment stages of litigation.
In light of this decision, employers should ensure that only qualified and trusted individuals have the power to take tangible employment actions and that job descriptions clearly define the scope of an employee's authority. In addition, employers should carefully screen and train their management-level and other employees on appropriate workplace conduct in order to minimize their potential liability for harassment in all cases. Even though the Ball State decision is favorable to employers, employers should continue to maintain comprehensive anti-harassment policies and robust internal complaint procedures to ensure that any harassment can be promptly detected and corrected.