Fourteen years after deciding that employers can be liable under Title VII of the 1964 Civil Rights Act for the conduct of supervisors who create a sexually hostile work environment, the U.S. Supreme Court is addressing a related, unanswered issue: Who qualifies as a “supervisor.” On November 26, 2012, the U.S. Supreme Court heard oral argument in Vance v. Ball State University, No. 11-556.
The Supreme Court previously held in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth that employers are liable for a sex-based hostile work environment carried out by the victim’s supervisor, subject to an affirmative defense. Where the harasser is not a supervisor but only a co-worker, the employer is not liable unless it is found negligent in its handling of the victim’s complaint.
In Vance, the U.S. Supreme Court confronts the issue of whether to adopt the broad, employee friendly definition of supervisor applied by the Second, Fourth, and Ninth Circuit Courts of Appeals. These courts define a “supervisor” for purposes of Title VII as any employee who “directs and oversees” another employee’s daily work. On the other hand, the First, Seventh and Eighth Circuits have adopted a more narrow, employer friendly definition, which states that only employees who have the power to “hire, fire, demote, promote, transfer, or discipline” another employee are supervisors of the alleged victim.
Petitioner Maetta Vance alleged that Saundra Davis, a catering specialist, had made Vance’s life at work as a catering assistant stressful through physical acts and racial harassment. The harassment allegedly included racial epithets, references to the Ku Klux Klan, veiled threats of physical harm, and the like. Vance sued her employer, respondent Ball State University, for workplace harassment by a supervisor. Vance asserted that Davis was a supervisor and assigned a daily list of work-related tasks to her. Ball State countered that Davis was not Vance’s supervisor. Vance urged the Court to adopt the standard set by the Circuits that define a supervisor broadly to include employees with authority to “direct and oversee” another employee’s daily work.
The District Court granted summary judgment in favor of Ball State. The Court of Appeals for the Seventh Circuit affirmed, determining that Davis was not Vance’s supervisor because Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. Additionally, both lower courts found Ball State had an adequate system in place for reporting and investigating claims of harassment under Title VII and thus the University could not be negligent. Because of the conflict in the circuit courts, the Supreme Court granted review.
During oral argument before the Supreme Court, defendant Ball State’s attorney did not contend that the Court should adopt the First, Seventh and Eighth Circuit’s Title VII definition of a supervisor. He conceded, in fact, “the court’s precedents compel that the Court reject [the Seventh Circuit’s test]” and that the Court should “adopt something like the EEOC rule or the Second Circuit rule.” Instead, counsel argued that Ball State was entitled to judgment regardless of the definition of “supervisor.” Appearing surprised by the employer’s attorney’s position, Justice Antonin Scalia stated, “we took [this case] principally to decide whether the Seventh Circuit rule was -- right or not. And you don’t even defend that. So there is nobody here defending the Seventh Circuit.”
If the Court determines that a “supervisor” is anyone with authority to “direct and oversee” a person’s daily work, employers could see increased findings of liability for hostile work environment claims. Additionally, employers might want to rethink not only their training programs but also the job responsibilities of workers with quasi-leadership roles.
Vance should be decided by June, when the high court’s current term ends. We will provide an update on the decision.