Standards for Liability for Unlawful Harassment

Under Title VII of the Civil Rights Act of 1964 (Title VII), the scope of an employer’s liability for the existence of a hostile work environment (and other forms of discriminatory conduct) depends on whether the harasser is a co-employee of the victim or at a higher level, such as a supervisor or manager. In general, if the harasser is a co-employee, the employer is liable if the victim can show that the employer knew or should have known of the conduct and failed to stop it. A negligence standard is applied to either discovering or remedying the harassment.

However, a much stricter approach to liability is applied if the harasser is a supervisor of the victim. In those situations, an employer is vicariously liable for the actions of the supervisor whether or not the employer was aware of the offensive conduct. The rationale for this standard is that a supervisor’s actions merge with the employer and become that of the employer. A supervisor is charged with maintaining a productive and safe work environment and his or her direction and control of the employees inures to the benefit or detriment of the employer.

Defining the Term “Supervisor”

The courts are currently divided on how narrowly or broadly to define the term “supervisor” in this context. In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), a female lifeguard sued the city for sexual harassment based on the conduct of her supervisors. Partially at issue in the case was whether, and to what extent, an employer may be found vicariously liable under Title VII to a victim of unlawful harassment. The U.S. Supreme Court determined that a harasser will be deemed to be the victim’s supervisor if he merely has the general authority to direct the victim’s daily work activities. This broad definition has been adopted by the Equal Employment Opportunity Commission (EEOC) and several federal circuit and appellate courts, including the Second Circuit, Fourth Circuit, and Ninth Circuit. See:

  • Mack v. Otis Elevator Co., 326 F.3d 116 (2d Cir. 2003) (mechanic in charge of elevator mechanics at certain site was supervisor for purposes of determining vicarious liability when he had directed particulars of each employee’s work days and was the senior employee on site)
  • Whitten v. Fred’s, Inc., 601 F.3d 231 (4th Cir. 2010) (definition turns on whether the harasser had the power and authority to make the victim vulnerable to and defenseless against the particular conduct in ways that comparable conduct by a mere co-worker would not )
  • McGinest v. GTE Service Corporation, 360 F.3d 1103, 1119 n. 13 (9th Cir. 2004) (defines supervisor to include any employee who has authority to demand obedience from the victim)
  • Dinkins v. Charoen Pokphand USA, Inc., 133 F.Supp.2d 1254 (M.D. Ala. 2001) (employee is a supervisor for purposes of Title VII if he has the actual authority to direct another employee’s day-to-day work activities in a manner that may increase the employee’s workload or assign additional or undesirable tasks)
  • Kent v. Henderson, 77 F.Supp.2d 628, 634 (E.D. Pa. 1999) (determination of status of supervisor turns on whether determination of status of supervisor turns on whether the harasser had the authority to hire, fire, reassign or demote the victim, set her work schedule or pay rate, or had the power to take tangible employment action against her or affect her daily work activities)

However, this standard of defining the term “supervisor” under Title VII has been challenged recently by the Seventh Circuit in Vance v. Ball State University, 646 F.3d 461 (7th Cir. 2011). In Vance, an African-American catering-department employee brought an action against a state university asserting Title VII claims for hostile work environment based on race. The employee argued that the harasser should be deemed to be her supervisor under Title VII due to the fact that she had the authority to tell her what to do and that she did not clock in to work like other hourly employees. The Court disagreed and ruled that under Title VII a supervisor is someone with power to “directly affect” the terms and conditions of the victim’s employment and that such authority “primarily consists of the power to hire, fire, demote, promote, transfer, or discipline” the victim. Accordingly, the Vance court, by narrowing the definition of the term “supervisor,” has significantly limited the size of the pool of individuals who can ultimately bind an employer vicariously for their actions in creating an actionable hostile work environment.

This restricted definition of the term “supervisor” has also been adopted by several federal circuit and appellate courts including the First Circuit and Eighth Circuit. See:

  • Noviello v. City of Boston, 398 F.3d 76, 96 (1st Cir. 2005) (supervisor status under Title VII requires a showing that the harasser had the power to terminate, discipline, or otherwise affect the terms and conditions of the victim’s employment)
  • Joens v. John Morrell & Co., 354 F.3d 938, 940-41 (8th Cir. 2004) (foreman not a supervisor if he did not have power to inflict tangible employment action on scale of hiring, firing, demoting, promoting, or disciplining victim)
  • Griffin v. Harrisburg Prop. Services, Inc., 421 F. Appx 204, 209 (3d Cir. 2011) (requires authority to hire, fire, demote, promote, transfer, or discipline victim)
  • Johnson v. Shinseki, 811 F.Supp.2d 336, 347-48 (D.D.C. 2011) (requires authority to hire, fire, demote, promote, transfer, or discipline victim)
  • Browne v. Signal Mountain Nursery, L.P., 286 F.Supp.2d 904, 913, 918 (E.D. Tenn. 2003) (to be a supervisor, one must possess the power to initiate, recommend, or effect tangible employment actions affecting the economic livelihood of the supervisor’s subordinates)

On June 24, 2012, the Supreme Court granted review of Vance. Oral arguments were held on November 26, 2012, during which Vance’s attorney argued that a supervisor should be defined as someone who can instill fear in the victim even if such a mid-level supervisor does not hire or fire employees. Interestingly, counsel for Ball State argued that both the Vance standard and that of the EEOC are too broad and that some standard between the two should be used. He reasoned that individuals who lack the power to hire and fire can still be supervisors; however, merely having some occasional or marginal authority to lead or direct should be insufficient to qualify one as a supervisor.

Through his questioning, Chief Justice John Roberts appeared to favor the Vance approach because he believed it would tend to eliminate the need for case-bycase analyses. Other justices seemed less clear about their position on the issue. The oral argument ended on an uncertain note with no clear indication of how the Court will rule.

The U.S. Supreme Court’s decision is expected during the 2012–2013 term. Notwithstanding the outcome, the beginning of a new year is always a good time for employers to focus on retraining employees on workplace conduct expectations. It is of particular importance for employers to provide regular, appropriate training to any employee who may be deemed a “supervisor.” Training should focus on understanding what constitutes an unlawful hostile work environment, how to better recognize when one exists in the workplace, and how to take effective measures to eliminate the unlawful behavior and ensure that it does not return to the workplace.