Executive Summary: On June 24, 2013, the United States Supreme Court issued an opinion favorable to employers, determining the term "supervisor" under Title VII should be defined narrowly. In Vance v. Ball State University, the Court limited employers' vicarious liability for workplace harassment by a "supervisor" to harassing conduct by persons with authority to take tangible employment actions (hire, fire, demote, promote, transfer, discipline) against the victim. For the first time defining "supervisor" for Title VII purposes, the Court defined it narrowly and favorably to employers. The Court split 5-4 along ideological lines with Justice Alito writing the majority opinion for the conservative wing of the Court. Justice Ginsburg was joined in her dissent by Justices Sotomayor, Breyer, and Kagan.
Title VII of the Civil Rights Act of 1964 ("Title VII") makes it unlawful for an employer to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of the individual's race, color, religion, sex, or national origin. The Supreme Court has recognized that this language also prohibits the creation or perpetuation of a discriminatory or "hostile" work environment through harassment or other means.
In two leading decisions issued in 1998, the Supreme Court focused on the harasser's status in determining whether an employer will be held liable for alleged harassment. In Faragher v. City of Boca Raton, 524 U.S. 775, and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, the Court held that if the alleged harasser is the plaintiff's co-worker, the employer will be vicariously liable for the misconduct only if it was negligent in either discovering or remedying the offending behavior. If, however, the alleged harasser is a supervisor, the employer will be vicariously liable for the harassment, and can avoid liability only by proving that it: (1) exercised reasonable care to prevent and correct any harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities.
Before Vance, however, the Supreme Court had not specifically defined what constituted a "supervisor" under Title VII. Lower courts differed on qualifications one must possess to qualify as a supervisor for vicarious liability purposes. Some held that an employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the victim. Other courts, following the EEOC's preference, adopted a more open-ended approach, which tied supervisor status to the ability to exercise "significant discretion" over another's daily work. The Supreme Court has now endorsed the more restrictive view.
The Facts of the Case
Vance, an African-American formerly employed by Ball State University, made several complaints of racial discrimination and retaliation over the course of her employment. At issue in this case was a complaint by Vance against Sandra Davis, a white female employee who worked as a catering specialist in Vance's department. Vance claimed Davis "gave her a hard time at work by glaring at her, slamming pots and pans around her, and intimidating her." Vance alleged she was "left alone in the kitchen with Davis, who smiled at her," "gave her weird looks," and "blocked" her on an elevator and "stood there with her cart smiling." Although the parties disputed the exact scope and nature of Davis' duties, they agreed Davis lacked the power to hire, fire, demote, promote, transfer, or discipline Vance.
The trial court ruled that Vance failed to show that Davis was a supervisor under the Seventh Circuit's narrow definition, which requires an individual to have the power to directly affect the terms and conditions of the plaintiff's employment. The Seventh Circuit affirmed, and the Supreme Court upheld the Seventh Circuit's decision.
Supervisor Defined Narrowly
The Supreme Court adopted the Seventh Circuit's narrow definition of supervisor. In doing so, it rejected Vance's argument that at least one of her co-workers should be considered a supervisor because the employee's job description included "leading, directing, and overseeing the work of substitute and part time employees," and Vance had served in a substitute or part-time capacity during the alleged harassment.
The Court's majority held that the Seventh Circuit's formulation for determining who is considered a supervisor was easily workable and could be applied without undue difficulty at both the summary judgment stage and at trial. The Court noted that under this standard, an employee's supervisory status could be readily determined, generally by written documentation. By contrast, the Court characterized the standard advocated for by the EEOC as "nebulous" and "abstract." The Court found this standard would be difficult to apply and would undoubtedly frustrate judges and confound jurors.
Because the alleged harasser was not empowered to take tangible employment actions against Vance, the Supreme Court affirmed the Seventh Circuit and dismissed Vance's appeal.
Employers' Bottom Line:
The Supreme Court has drawn a clear line for determining whether an employer may be held vicariously liable for its employees' alleged harassment of other employees. As the Court's majority notes, whether an employee is a supervisor for these purposes will often be easily determined simply by referring to that employee's job description. An employer can be held liable for the actions of an employee who has authority to hire, fire, demote, promote, transfer, or discipline another employee. Employers should, therefore, take time to audit job descriptions and the actual daily responsibilities of their employees to ensure the description accurately reflects the actual functions of each job. Failing to do so could leave an employer exposed to vicarious liability for actions of an employee who does not actually exert supervisory authority.