This morning, the Supreme Court of the United States heard oral argument in Vance v. Ball State University, in which the Court considered the definition of "supervisor" as it relates to an employer's vicarious liability under the Court's opinions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). In Faragher and Ellerth, the Court held that, under Title VII of the Civil Rights Act of 1964, an employer under certain circumstances can be vicariously and strictly liable for workplace harassment of, and discriminatory conduct directed toward, subordinate employees by "supervisors." However, an employer is vicariously liable for harassment or discrimination inflicted by employees' co-workers only if the complaining employee can prove that the employer was negligent in either discovering or remedying the offending conduct. In Vance, the Court is set to examine the definition of "supervisor" for Faragher/Ellerth purposes, and ultimately will decide whether the term:
- applies to those management-level employees whom the employer vests with authority to direct and oversee other employees' daily work, or
- is limited to those management-level employees who have the power to "hire, fire, demote, promote, transfer, or discipline" their victim.
A copy of the hearing transcript is here.
Vance focuses on the allegations of plaintiff Maetta Vance, who was the only African American employee in defendant Ball State University's Banquet and Catering Department. In 2006, Ms. Vance filed a complaint against the University, alleging, among other things, that it violated Title VII through the actions of Saundra Davis, who also worked in the Banquet and Catering Department. Specifically, Ms. Vance claimed that Ms. Davis created and fostered a hostile work environment by making discriminatory remarks about Ms. Vance's race and ethnicity. Ms. Vance reported Ms. Davis' actions to University personnel, who investigated the claims. But because both women provided conflicting accounts concerning who harassed whom, supervisors in the Banquet and Catering Department declined to formally discipline either woman, and instead required both to undergo counseling concerning proper workplace behavior.
The University filed a motion for summary judgment on the ground that it is shielded from Ms. Vance's suit under Faragher and Ellerth. The U.S. District Court for the Southern District of Indiana granted the motion, concluding that Ms. Vance failed to establish that (i) Ms. Davis was her supervisor, and (ii) the University acted negligently when addressing Ms. Vance's complaints when it was undisputed that the University required both women to undergo counseling. The U.S. Court of Appeals for the Seventh Circuit affirmed the district court's decision, ruling that Ms. Vance failed to introduce evidence showing that Ms. Davis was her supervisor under Faragher and Ellerth. The court explained that, under Seventh Circuit law, "[a] supervisor is someone with power to directly affect the terms and conditions of the plaintiffs' employment." That authority, in turn, "primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee."
The Seventh Circuit also noted that it has not joined other Circuit Courts of Appeals that have held that the authority to direct an employee's daily activities establishes "supervisory" status for the purposes of Faragher and Ellerth. The First, Third, Sixth, and Eight Circuits have adopted standards similar to the Seventh Circuit's definition of "supervisor," holding that a "supervisor" has the power to directly affect the terms and conditions of subordinates' employment. The Second, Fourth, Ninth, and Tenth Circuits, on the other hand, have taken a broader view, holding, with some variation, that a "supervisor" is an individual who has the authority to oversee an employees' daily work activities. For instance, in Mack v. Otis Elevator Co., 326 F.3d 116 (2d Cir. 2003), the Second Circuit held that, when determining whether an employee is a "supervisor," courts must examine "whether the authority given by the employer to the [harassing] employee enabled or materially augmented the ability of the latter to create a hostile work environment for his or her subordinates." Similarly, the Guidelines set forth by the Equal Employment Opportunity Commission (the "EEOC") concerning "supervisors" echo the broader definition adopted by the Second, Fourth, Ninth, and Tenth Circuits: that "supervisors" have the authority to direct employees' daily work activities.
During this morning's argument, the Justices — and Justices Scalia and Alito in particular — appeared dismayed that none of the advocates present in court argued in favor of the test the Seventh Circuit applied and that the Supreme Court was evaluating. Attorneys for Ms. Vance, Ball State University, and the United States of America instead presented arguments that the Seventh Circuit's standard was incorrect, and that the Supreme Court should announce a new standard akin to the standards applied by the Second Circuit in Mack and embraced by the EEOC guidance.
The parties' positions differed only as to whether remand was warranted: Counsel for Ms. Vance argued that further discovery would be necessary in the event that the Court announced a new standard, whereas counsel for the University asserted that the Court should affirm the Seventh Circuit and announce a new standard simultaneously because, on the record, Ms. Davis could not be considered a "supervisor" under any standard. As the University counsel stated, when providing instruction to Ms. Vance as to her daily work activities, Ms. Davis merely served as a conduit for other supervisor's work assignments. Justice Scalia noted that the Supreme Court did not agree to hear the case to decide any outstanding factual questions; Justice Alito agreed, adding that the Court was tasked with addressing the legal issue of the scope of supervisory liability under Faragher and Ellerth.
Nevertheless, the standard applied by the Seventh Circuit appeared to find a champion in Chief Justice Roberts. Throughout the argument, the Chief Justice illustrated the benefits of utilizing a bright-line rule such as the Seventh Circuit's by posing a number of hypothetical scenarios that demonstrated that the Second Circuit and EEOC standards would always result in ad hoc determinations. For instance, the Chief Justice asked whether a senior employee in a work group who had the right to select the music that would be played during work hours was a "supervisor" when his decision to choose country music was a result of an employees' unwillingness to accede to his harassment. Did the employee's ability to affect their daily work activities rise to the level of a tangible employment action so that the employee was a "supervisor"? Ms. Vance's attorney stated that the determination would have to be made on a case-by-case basis, to which Chief Justice Roberts replied that he believed that the benefit of the Seventh Circuit's standard was that it avoided such case-by-case determinations. The Chief Justice continued that he recognized that, with every bright-line rule, there will be some cases that fall outside of the standard that would appear to be a "harsh" result.
For her part, Justice Kagan appeared to position herself to be the Seventh Circuit's biggest critic. On more than one occasion, Justice Kagan stated that she did not understand how the Seventh Circuit's standard operated, and posed a hypothetical question to Ms. Vance's attorney to demonstrate the standard's perceived deficiencies: whether a professor at a university who made his secretary's work environment a "living hell" was a "supervisor" as defined by the Seventh Circuit, when the secretary directly reported to a head of secretarial services and not to the professor, and despite the fact that the professor had the ability to evaluate the secretary's performance. Ms. Vance's attorney replied that the professor would not be considered the secretary's "supervisor," but rather her "co-worker," and thus any analysis concerning the hypothetical university's vicarious liability would have to proceed under the negligence prong of the Faragher/Ellerth analysis.
The Supreme Court's opinion in Vance has the potential to dictate the scope of future Title VII litigation. The volume of Title VII claims brought against employers involving employees in management-level positions will change in direct proportion to the Supreme Court's definition of "supervisor." On one hand, if the Court adopts a broader definition of supervisor, employers could face increased exposure to Title VII claims. On the other hand, if the Court affirms the Seventh Circuit's narrower definition — that is, supervisors are individuals who have the power to "hire, fire, demote, promote, transfer, or discipline" employees — employers' exposure to Title VII litigation could decrease. The Court's opinion is expected to be announced sometime after January 1, 2013.