The U.S. Supreme Court has issued a ruling settling a split in the circuit courts over the definition of “supervisor” for purposes of employer liability for harassment under Title VII of the Civil Rights Act of 1964, in Vance v. Ball State University, (Docket No. 11–556). The circuits had split on the issue, with three circuits, including the Second Circuit, adopting a broad definition, and three adopting a narrow definition which included only those employees who have the power to hire, fire, demote, promote, transfer or discipline other employees. In the Vance ruling, the Supreme Court has adopted the latter, narrower definition, thus changing the state of the law in the Second Circuit. After Vance, an employee is only a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.
Fifteen years ago, in two companion cases, Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v. Boca Raton, 524 U. S. 775 (1998), the Court held that employers are vicariously and strictly liable for workplace harassment or discrimination carried out by a victim’s supervisor that results in a tangible employment action. If no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. If the harasser is a co-worker and not a supervisor, the employer is only liable if it was negligent in either the discovery or the handling of the victim’s complaint.
These decisions left open the question of who qualifies as a “supervisor”, and the circuits split on the issue. The Second, Fourth, and Ninth Circuit Courts of Appeals and the Equal Employment Opportunity Commission (“EEOC”) adopted a more employee friendly definition of supervisor, including any employee who “directs and oversees” another employee’s daily work, while the First, Seventh and Eighth Circuits use a more narrow definition, including only employees who have the power to “hire, fire, demote, promote, transfer, or discipline” as supervisors of the alleged victim.
The Court in Vance has adopted the narrower definition, which changes the definition of “supervisor” for employers in the Second Circuit.
Vance, the plaintiff, who was a catering assistant, alleged that the catering specialist who assigned her daily tasks had racially harassed and made physical threats during the plaintiff’s work. Vance sued the employer for harassment, alleging that the catering specialist was a supervisor, since she assigned daily tasks to Vance. The employer countered that the catering specialist was not a supervisor, and therefore that it was not liable for any harassment.
Lower Court Rulings
The District Court granted summary judgment in favor of the defendant, explaining that the employer could not be held vicariously liable for the alleged racial harassment of the catering specialist, because the catering specialist could not hire, fire, demote, promote, transfer, or discipline the plaintiff and, as a result, was not her supervisor. The Court further held that the employer could not be liable in negligence because it responded reasonably to all incidents of which it was aware. The Court of Appeals for the Seventh Circuit affirmed.
The Court ruled 5-4 in favor of upholding the Seventh Circuit’s decision. The majority decision, written by Justice Samuel A. Alito Jr., rejected the more expansive definition of “supervisor” adopted by the EEOC and several circuit courts, including the Second Circuit, as someone authorized to either take tangible employment actions or direct the employee’s daily work activities. Instead, the Court ruled that the term “supervisor” should be limited to one who is authorized by the employer to take tangible employment actions like hiring, firing, promoting, demoting or reassigning employees to significantly different responsibilities.
Justice Ruth Bader Ginsburg wrote the dissent, noting that the Court’s decision “strikes from the supervisory category employees who control the day-to-day schedules and assignments of others,” and finding that the decision “ignores the conditions under which members of the work force labor,” and “relieves scores of employers of responsibility for the behavior of the supervisors they employ.” She further called on Congress to fix the Court’s decision, writing that “the ball is once again in Congress’ court to correct the error into which this Court has fallen.”
The Supreme Court’s decision decreases potential liability for employers in New York and the rest of the Second Circuit, by decreasing the number of individuals who could be deemed a “supervisor”. It seems likely that judges will use this ruling to prevent cases from getting to a jury at all, as the lower court did in Vance. This may have the effect of reducing the complexity and thus the cost of discrimination lawsuits, and as a result may reduce the settlement value of these cases as well.