Vance v. Ball State University, a case currently pending before the U.S. Supreme Court, may create more barriers for victims of workplace harassment to prove their cases in federal court.
Take "Monica" for instance. Like many workers, when Monica started working as a line cook for her employer, a fast food restaurant chain, she was not given an orientation about the company's hierarchy. Human resources never told her which supervisor(s) had the "authority" to hire, fire, demote, promote, transfer or discipline her. In fact, the only supervisor whom Monica ever knew was her immediate supervisor, "Diego," the head cook at the restaurant location where she worked.
Diego introduced himself to Monica as "the boss." He directed her on how to cook and clean her station, and he oversaw her work during her shifts. He gave her a uniform, had control over her ingredients and cleaning supplies, and the authority to determine whether her work was satisfactory enough for her to go home at the end of her shift.
And even though Diego did not actually have the "power" to hire, fire, demote, promote, transfer or discipline Monica, he was vested with enough "power" to feel emboldened to sexually harass her every day for several months, rape her in the restaurant bathroom during one of her shifts, and then tell her that if she told anybody what happened, she would lose her job, not him. Diego acted like, and led Monica to believe, that he was her boss. Notably, the employer allowed Diego to act in this manner and never told Monica that Diego lacked authority over her.
Monica's story is not a real one, but sadly representative of many similar stories we hear from the clients we represent in workplace sexual harassment cases at Equal Rights Advocates, a national women's rights advocacy organization based in San Francisco.
In California, in most cases like Monica's, there would be little question that an immediate supervisor like Diego could qualify as a "supervisor" under the state's Fair Employment and Housing Act, and that when such a supervisor harasses a worker because of her sex or race, the employer is automatically liable for the damages. Only where the alleged harasser is a co-worker would the victim have to show that the employer was negligent in following up on the complaint.
However, the same cannot be said of cases like Monica's when they are decided under federal law. While an employer is also automatically liable for severe or pervasive workplace harassment by a supervisor of the victim under Title VII of the federal Civil Rights Act of 1964, there are conflicting standards as to who qualifies as a "supervisor."
The U.S. Equal Employment Opportunity Commission, which is the federal agency charged with enforcing laws against workplace discrimination, has issued a guidance defining a "supervisor" under Title VII as an "individual [who] has the authority to undertake or recommend tangible employment decisions affecting the employee; or [an] individual [who] has authority to direct the employee's daily work activities." The EEOC has also acknowledged that an individual may qualify as a "supervisor" even when that employee does not have actual authority over another employee, but the other employee reasonably believed that the harasser had this power, such as when the chain of command is unclear or when an employee is delegated with broad powers that could significantly influence employment decisions regarding other employees.
The U.S. Courts of Appeal for the Second, Fourth and Ninth circuits, following this guidance from the EEOC, have held that this "supervisor" liability rule applies to harassment by those whom the employer vests with authority to direct and oversee their victims' daily work. The First, Seventh and Eighth circuits, on the other hand, have determined that it is limited to those harassers who have the power to "hire, fire, demote, promote, transfer or discipline" their victim.
In Vance, the Supreme Court has now endeavored to resolve this split among the federal courts. The court recently heard oral argument on the question of who qualifies as a supervisor under Title VII when there is harassment in the workplace. The court's answer to this question, anticipated some time after the first of the year, could either make it much more difficult or easier for victims of workplace harassment like Monica to prove their cases in federal court.