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U.S. Supreme Court to Define Workplace 'Supervisor'
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.
Maetta Vance began working in the banquet and catering department at Ball State University in Muncie, Ind., in 1989. Vance worked for Ball State for 18 years and enjoyed two promotions and several pay raises based on her excellent performance. However, Vance was the only African-American in the department and was forced to tolerate racist name-calling by one of her immediate supervisors, Saundra Davis, who also threatened her. The university investigated Vance's claim, but because Vance and Davis provided conflicting accounts, it did not take any disciplinary action and instead required both women to undergo counseling.
Vance ultimately brought suit against the university for a hostile work environment based on racial harassment and retaliation. However, both a district court judge and the Seventh Circuit ruled that she had not proven her claims. The Seventh Circuit threw out Vance's case because it determined that since Davis did not have the authority to hire, fire, demote or discipline Vance, she did not qualify as Vance's "supervisor" under Title VII.
Vance appealed the ruling to the Supreme Court, contending that the definition was too narrow. Vance argued that had the Seventh Circuit not applied its restrictive standard of "supervisor," Vance had presented a triable claim that Davis was authorized to direct her daily work activities. Davis' job description set forth her duty to "supervise" and to "direct" and "oversee" other employees.
The university urged the court not to hear the case, claiming that Vance could not show Davis was her "supervisor" under the EEOC's definition or any standard articulated by the federal courts. While the university did not squarely defend the Seventh Circuit's restrictive standard, it still argued that the definition proposed by Vance is too broad and an employee's job title and job description are irrelevant to whether he or she is a "supervisor" under Title VII.
The bright-line definition of "supervisor" adopted by the First, Seventh and Eighth circuits is too restrictive. It ignores the practical realities of many of today's workers who find themselves in situations similar to Monica's. In many workplaces, face-to-face contact is only available with immediate supervisors. Often times, workers do not know any of the higher-ups or HR professionals by face, name or even title. Workers run requests to leave a shift early or come in late by their immediate supervisors. They receive work materials, work orders and direction and feedback about work from their immediate supervisors. For all intents and purposes, immediate supervisors are the only people who actually influence the workers' conditions on the job and exercise day-to-day control and oversight of their work, and this is regardless of whether they have the actual authority to "hire, fire, promote, demote, transfer or discipline" workers.
The university's proposed definition of "supervisor," while more expansive than the First, Seventh and Eighth circuits, is equally untenable. Just as job descriptions provide notice to the applicants for a position as to which qualifications are required and what kinds of duties they will be expected to perform, they are also reliable indicators of the power and authority that the employer intends to vest and actually vests in the person who it ultimately hires for the position.
Where the Supreme Court will fall on this debate is unclear. A few members of the court, like Chief Justice John Roberts and Justice Samuel Alito, appeared to have no qualms with the Seventh Circuit's approach. At one point during oral argument, Roberts asked Vance's counsel whether an employee would qualify as a supervisor if that employee could decide what background music to play throughout the day and threatened to play music that another employee did not like to force that employee to go out on date. Vance's counsel responded that workplace dynamics would need to be evaluated on a "case-by-case basis." In asking this hypothetical, Roberts intended to highlight the simplicity of the Seventh Circuit's definition, a standard that in his estimation would prevent the courts from having to analyze the facts of particular workplaces.
As oral argument proceeded, it appeared that some members of the court were less interested in the simplicity of the Seventh Circuit's definition and more concerned with whether there was scant evidence of supervisor status under the facts of this particular case. Justices Ruth Bader Ginsburg and Elena Kagan, for instance, posed questions to Vance's counsel, which would elicit specific evidence establishing a supervisory relationship between Davis and Vance.
Ultimately, the outcome of the Vance case may fall on the sufficiency of evidence. But it should not fall on a restrictive definition of supervisor that ignores the practical realities and power dynamics of most workplaces. Where an employer sanctions the authority of one employee over another by allowing that employee to direct the other employee's work or by not making the chain of command clear to its subordinates, it should be strictly liable for any harassment that results. Otherwise, countless women like Monica will continue to suffer at the hands of employees like Diego.
Monali Sheth is a staff attorney at Equal Rights Advocates in San Francisco, a nonprofit legal organization that advocates on behalf of women and girls seeking equality in employment and education. She leads ERA's Marginalized Women Worker Campaign, representing low-wage and immigrant women workers in employment discrimination and related civil rights litigation.
This article originally appeared in The Recorder.