Must an individual have the power to hire and fire, determine compensation, or demote an employee in order to be a “supervisor” for purposes of Title VII of the Civil Rights Act of 1964? Or is simply the power to direct an employee’s work sufficient to make an individual an “agent” of the employer under Title VII? Federal appellate courts have differed sharply on this issue, and the U.S. Supreme Court has now agreed to resolve the debate. Broadening the definition of “supervisor” will almost certainly lead to a significant uptick in litigation for employers under Title VII.
In a pair of earlier cases, the Supreme Court had ruled that if a supervisor takes a “tangible employment action” against an employee in the context of unlawful harassment, the employer has vicarious liability for that action, whether or not it was aware of the harassment. If no “tangible employment action” has been taken against the target of harassment, then the employer can mount an affirmative defense (called the Faragher/Ellerth defense) that it took reasonable steps to prevent or respond to the harassment and the employee did not take advantage of those preventive or corrective policies. Under that same doctrine, an employer is not vicariously liable for harassment by non-supervisory co-workers of which it was unaware, unless the employer was negligent.
The case now before the Supreme Court, Vance v. Ball State University, involves a claim of racial harassment and retaliation brought by an African-American employee in the university’s food service department. Vance alleged that four co-workers directed racial epithets at her and threatened her. The trial court, which ruled for the university without a trial, found that only one of the four co-workers had engaged in racially harassing behavior, and said that individual did not meet the definition of supervisor. Vance had alleged that the individual who engaged in racial harassment occasionally directed her work and did not “clock in” as other employees did. The trial court, citing clear precedent from the Seventh Circuit, ruled that only those who could directly affect terms and conditions of employment met the definition of supervisor under Title VII. There was no evidence that the alleged harasser had the power to "hire, fire, demote, promote, transfer, or discipline" anyone, including Vance. Because the university had responded promptly to Vance’s complaints about racial harassment, had disciplined the alleged harasser, and had taken steps to prevent further harassment, the trial court determined that the university was not liable under the Faragher/Ellerh defense. The Seventh Circuit affirmed the trial court’s summary judgment for the university based on its prior definition of “supervisor.” The Supreme Court has now agreed to review this case given the sharp inconsistencies among the lower courts.
The Supreme Court’s 1998 decisions in Faragher and Ellerth suggest that “supervisor” should be defined narrowly. The Court defined “tangible employment action” as a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” The Court reasoned that the employer should be vicariously liability for harassment by such individuals, whose power over employees stems from their status as agents of the employer. The power to direct an employee’s work, without more, does not seem to implicate this type of coercive authority to act in the name of the employer.
The Supreme Court will hear oral arguments in Vance v. Ball State University on November 26. A decision is expected during the Court’s spring term; we will advise you immediately of its outcome and the implications of the Court’s ruling. Stay tuned.