The U.S. Supreme Court is set to hear oral argument in Vance v. Ball State University addressing the definition of “supervisor” for the purposes of liability under Title VII of the Civil Rights Act of 1964. An employer can be held vicariously liable for the actions of a supervisor who discriminates against another employee on the basis of religion, sex, race, color, or national origin.
The Supreme Court has held in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) that a “supervisor” is an individual with direct authority over another employees’ daily actions. However, this definition has left the door open for interpretation resulting in a circuit split as to whether an alleged harasser is actually a supervisor or co-worker for purposes of determining employer liability. The First, Seventh, and Eighth Circuits have taken a narrow approach finding that supervisory authority is found where the individual is able to hire, fire, transfer, discipline or promote employees in subordinate positions. Conversely, the Second, Fourth, and Ninth Circuits have held that the ability to direct an employee’s daily activities is sufficient.
These divergent approaches have a significant impact on employer liability in harassment cases. If the harasser is found to be a supervisor, liability can be imposed on the employer. The employer is then forced to demonstrate that effective anti-harassment policies and measures were enacted and the victim to not adequately utilize internal procedures. However, if the harasser is in a non-supervisory position the burden shifts to the victim to demonstrate that the employer was aware or should have been aware of the harassment. It is only once the employee has met this burden that the employer can be held liable.
In Vance v. Ball State University, Maetta Vance brought action against Ball State after a co-worker in the University’s banquet and catering department threatened her, made racially charged remarks and slapped her. The 7th Circuit Court of Appeals found that the University could not be held liable because the alleged harasser was a co-worker and did not have the power to affect the conditions of her employment, despite having authority over her daily work activities. Vance claims that the decision of the Court of Appeals fails to abide by the standards of the Equal Employment Opportunity Commissions indicating that an employee can be considered a supervisor if he or she has the power to direct another employees daily activities.
The questions presented states:
Whether, as the Second, Fourth, and Ninth Circuits have held, the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or, as the First, Seventh, and Eighth Circuits have held (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.
The Courts decision will have a significant impact on employers subject to Title VII. A narrow interpretation as held by the 7th Circuit will limit the number of individuals whose actions could potentially subject the employer to liability. However, if the Court takes a broad view the employer is exposed to greater liability for the imprudent actions of employees.
A special thanks to Cynthia Thomas, a law clerk at Cullen and Dykman LLP, for helping with this post.