In a case that could impact employers everywhere, Vance v. Ball State University, Docket No. 11-556, the U.S. Supreme Court is considering who qualifies as a supervisor pursuant to Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries v. Ellerth, 524 U.S. 742 (1998). Or maybe not.
Much has been written about the potential consequences of the court’s ruling — that the definition of supervisor under Title VII could include more than just those who can hire, fire, demote, promote or discipline an employee. Because of the facts at issue in the case, it is also possible that the court will decide that certiorari was improvidently granted or that the court will answer a question so narrow in scope that it will not provide a resolution to the current split in authority. Regardless of the court’s decision, employers should take this opportunity to review the responsibilities and authority vested in their employees and to make sure that all employees are properly trained on the company’s anti-harassment policies and procedures.
Maetta Vance, a catering assistant in university dining services at Ball State University and the only African-American individual on the staff, alleged that Saundra Davis, a catering specialist, and another co-worker created a hostile work environment through physical acts and racial harassment. After each incident of harassment, Vance complained to management, which investigated the complaints and issued counseling and warnings to the alleged harassers. Vance asserted that Davis was a supervisor and, therefore, she need not prove that Ball State was negligent in responding to complaints of harassment; rather, she alleged, Ball State was liable because Davis’ actions were imputed to the university.
The U.S. District Court for the Southern District of Indiana granted Ball State’s motion for summary judgment, explaining that the alleged harasser (Davis) was merely a co-worker and did not qualify as a supervisor for the purposes of respondeat superior liability under Title VII. The U.S. Court of Appeals for the Seventh Circuit affirmed. Notably, both courts found that Ball State had an adequate system in place for reporting and investigating claims of harassment under Title VII and, therefore, could not have been negligent.
Vance, Ball State and the solicitor general presented three different questions for the court’s consideration.
Vance asked "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 the 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."
Ball State chose to frame a much narrower question for the Supreme Court, asking "whether the sole employee … whose status is at issue in this case possessed the supervisory authority necessary to trigger vicarious liability under Title VII."
The solicitor general, supporting neither party, presented still a third question, resembling Vance’s, asking "whether an employee must have the power to carry out a tangible employment action, such as hiring, firing, promoting, demoting, transferring or disciplining an employee in order to qualify as a supervisor for purposes of vicarious employer liability under Title VII."
Seventh Circuit’s Approach
Upholding the grant of Ball State’s motion for summary judgment, the Seventh Circuit followed its own precedent defining a supervisor as "someone with power to directly affect the terms and conditions of the plaintiff’s employment," in Vance v. Ball State Unviersity, 646 F.3d 461, 470 (7th Cir. 2011), specifically noting that it has declined to join other circuits with a more expansive definition of a supervisor. The Seventh Circuit’s test focuses on "the power to hire, fire, demote, promote, transfer or discipline an employee," as the court wrote in Parkins v. Civil Constructors of Illinois, 163 F.3d 1027, 1034 (7th Cir. 1998). Nevertheless, even Ball State does not appear to advocate the narrow interpretation of "supervisor" espoused by the Seventh Circuit. Instead, Ball State suggests that the Seventh Circuit "started down the right path" with the standard originated in Parkins because it focused primarily on the powers enumerated above. However, Ball State argues, the Seventh Circuit "veered off the path marked by the court’s precedent" by interpreting Parkins to hold that an employee must be authorized to take the tangible actions enumerated above.
Second Circuit’s Approach
Vance states that the Seventh Circuit’s interpretation of "supervisor" is contrary to the "supervisory relationship" in Faragher, arguing that Supreme Court decisions refute this narrow interpretation. She suggests that the court should embrace the standard articulated by the Second Circuit. The Second Circuit has embraced the EEOC’s definition of "supervisor" in this context. Thus, an individual is a supervisor if: "(a) the individual has the authority to undertake or recommend tangible employment decisions affecting the employee; or (b) the individual has authority to direct the employee’s daily work activities," as the court held in Mack v. Otis Elevator, 326 F.3d 116, 127 (2d Cir. 2003).
Practical Impact for Employers
In addition to the split of authorities, the court also seems to be faced with lackluster advocates for the standard actually applied in the courts below. At oral argument, Justice Antonin Scalia seemed concerned that nobody arguing was defending the Seventh Circuit. Counsel for Ball Sate pointed out that certain amici have defended and advocated for it, but then did not encourage the court to adopt the Seventh Circuit’s standard. To be sure, Ball State does not advocate an unlimited application on a broad definition of supervisor, but argues that agency principles and case law supply appropriate limits. While discouraging the court from adopting the standard set forth by the Seventh Circuit, Ball State does concede that it provides a superior bright-line test, creating certainty for employers. This certainty, it explained, "promotes the objectives of Title VII" by "ensuring that employers can identify and train supervisors." Toward the end of oral argument, Justice Anthony M. Kennedy suggested that if the Seventh Circuit’s rule were adopted, perhaps an additional duty of care that the employer take steps to prevent harassment should go along with it.
If the court chooses to only answer the much narrower question presented by Ball State — that no matter what the standard here, Vance has presented no evidence that could satisfy a supervisor — the outcome of this case could have little impact on the current split of authorities. There is a very real chance that the court’s opinion could contain another observation that "the Court’s ruling is good for this day and case only," as the court wrote in Genesis Healthcare v. Symczyk, 569 U.S. __, __ (2013). In fact, the solicitor general encouraged the court to deny the petition for certiorari, stating that this case is an "unsuitable vehicle" for resolving the circuit split because, regardless of the standard used, no alleged harasser under these facts would qualify as Vance’s supervisor.
Regardless of which question gets answered, it seems unlikely to be the bright-line standard advocated by the Seventh Circuit. Thus the only clear message becomes that not only do true supervisors need to be properly trained, employees with even the perceived authority to direct and oversee other employees’ daily work should also be properly trained. For employers, re-examining job definitions will also be key: Are you delegating too much supervisory-like responsibility to mere co-employees? Do more than true supervisors have the authority to oversee aspects of another employee’s job performance? Vance may provide some guidance as to who is a supervisor, and it will be important, now more than ever, for employers to ensure that all supervisors and those employees with certain authority be properly trained.
Christina Michael contributed to this article.
Lori Armstrong Halber and Rick Grimaldi, partners at Fisher & Phillips, are results-driven practitioners with an understanding of the practical business needs of their clients. They represent management in all aspects of labor and employment law and regularly provide training on such topics as performance management and creating a respectful workplace. Follow them on Twitter @LoriRickHRLaw.