Fenwick Employment Brief - July 2013: U.S. Supreme Court Decides Several Employment and Employment-Related Cases

Employer strictly liable for supervisor’s harassment of employee only if supervisor has hire and fire authority over subordinates

In a favorable decision for employers, the U.S. Supreme Court in Vance v. Ball State University ruled that employers are strictly liable for harassment by a supervisor where the supervisor is empowered to take tangible employment action against a subordinate employee, such as the authority to hire or fire. Under both federal Title VII and California Fair Employment and Housing Act (“FEHA”), employers face vicarious liability where a supervisor harasses an employee. Under Title VII, if no tangible adverse employment action is taken (for e.g., a termination or demotion), the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the employer’s available procedure to complain about harassment (this defense is unavailable under California law, i.e. employers are strictly liable for supervisor harassment regardless of the existence or absence of a tangible adverse employment action). Conversely, an employer is liable for harassment by a non-supervisory co-worker only where the employer knew or should have known about the harassment and the employer was negligent in permitting the harassment to occur.

Maetta Vance, an African American woman, was a server in the university’s dining services department. Vance alleged that Saundra Davis, a Caucasian woman, harassed her on account of her race by, among other actions, glaring at her, slamming pots and pans, blocking her movements, and giving her “weird” looks. It was undisputed that Davis had no power to hire, fire, demote, promote, transfer or discipline Vance. On occasion, Davis handed Vance food “prep lists.”

On these facts, the court held that Davis was not a supervisor under Title VII, and that the university would be liable for co-worker harassment only if the employer was negligent in preventing or correcting the alleged harassment. The court affirmed the decision of the lower court dismissing Vance’s lawsuit as she presented no evidence that the university was negligent in addressing Davis’ conduct.

California FEHA also defines a “supervisor” as an “individual having the authority … to hire, … discharge, … or discipline other employees...” Accordingly, state courts should also follow the Supreme Court’s ruling.