On June 24, 2013 in the case Vance v. Ball State University, the Supreme Court defined the scope of supervisory status as it applies to harassing co-workers under Title VII of the Civil Rights Act of 1964 (“Title VII”). In a five-four decision, the Supreme Court held that a co-worker employee is a supervisor only if the co-worker employee is empowered by the employer to take “tangible employment actions against the victim” of harassment. This is an important decision as it redefines and narrows the scope of employer liability in workplace harassment cases.
Under Title VII, an employer’s liability for workplace harassment is contingent upon the “status of the harasser.” In general, an employer’s liability for Title VII harassment exists under two scenarios. Under the first scenario, if the victim was harassed by an employee, the employer would be held liable only if the employer was “negligent in controlling working conditions.” To satisfy that standard, the victim “must show that the employer knew or should have known of the offensive conduct but failed to take appropriate corrective action.” Under the second scenario, an employer can be found strictly liable for harassment conducted by a supervisor. In Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court held an employer is strictly liable if the supervisor’s harassment constituted a “tangible employment action.” Tangible employment actions include the employee’s power and authority to cause 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” against the victim. Under this scenario, if the supervisor did not take a tangible employment action, then the employer can escape liability if the employer can show that (i) the employer tried to implement reasonable remedial measures to prevent or correct the harassing conduct and (ii) the victim-employee unreasonably ignored or did not use the remedial measures offered by the employer.
Relying on Burlington Industries Inc. and Faragher, the Supreme Court applied the framework of “supervisor” to determine the status of harassing co-workers. In other words, a harassing employee is a “supervisor” only if the employee is “empowered by the employer to take a tangible employment action” against the victim-employee. In the dissenting opinion, Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, wrote that the majority’s decision “ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation’s workplaces.” Justice Ginsburg ended the dissent by asking Congress to correct the ruling.
In response to the dissent’s concerns, the majority acknowledged that this definition of supervisor as applied to co-workers departs from the definition formerly applied by several lower courts and the Equal Employment Opportunity Commission (“EEOC”). Under the EEOC definition, an employee’s supervisory status was determined by the employee’s ability to exercise “significant direction over another’s daily work.” Accordingly, the number (and possibly the importance) of the employee’s tasks in question was one of the considerations in determining the employee’s status. The majority noted that if the Court adopted the vague EEOC definition of a supervisor, it would result in an inconsistent and unpredictable application of employer liability. The majority further determined that the vagueness of the EEOC’s supervisory definition made trial a necessity because it would require a jury to look at the harassing employee’s workplace circumstances and analyze under two different frameworks the employee’s status. Instead, under the Vance decision, the status of the harasser is easily determined by the fact of whether or not the harasser had the power to hire and fire.
The Vance decision will have several implications on the world of Title VII work-place harassment cases. First, by limiting the definition of “supervisor” to employees that can take a “tangible employment action” against the victim, a co-worker will not be considered an employee simply because the employee performs a number of tasks in the work place. Thus, this definition severely limits the scope of employer liability in co-worker harassment cases. Second, the Supreme Court explained that the clarity of this definition will aid in the determination of employer liability as a “matter of law” before the start of litigation. As a result, the summary judgment process for these types of claims will become more predictable and easier to manage. And finally, the Supreme Court’s adoption of “supervisor” as it applied to co-workers will allow for easier jury trials because juries will no longer need to analyze the status of the employee under two different frameworks. If the employee simply does not have the power from the employer to hire and fire, then the employee is not a supervisor and the employer cannot be held strictly liable for the harassing employee. If that is the case, the Supreme Court assured that the victim-employee could still seek protection by possibly bringing a claim against the employer for negligence.
A special thanks to Melissa Cefalu a law clerk at Cullen and Dykman LLP, for help with this post.