Last month, our article, “Questions Raised Regarding Who Qualifies as a Supervisor,” appeared in the Labor and Employment Law Supplement to The Legal. Recently, in a week filled with big decisions, the U.S. Supreme Court answered those questions in Vance v. Ball State University, Docket No. 11-556, by adopting a narrow and generally employer-friendly definition of “supervisor” for vicarious liability under Title VII.
The petitioner, Maetta Vance, a catering assistant in University Dining Services at Ball State University and the only African-American individual on the staff, sued her employer alleging that Saundra Davis, a catering specialist, and another co-worker created a hostile work environment through physical acts and racial harassment. Vance asserted that Davis was a supervisor within the meaning of Title VII and, therefore, she need not prove that the respondent was negligent in responding to complaints of harassment; rather, Vance alleged, Ball State was liable because Davis’ actions were imputed to the university.
The district court granted the respondent’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.
In a 5-4 decision, the Supreme Court affirmed the Seventh Circuit, holding that “an employee is a ‘supervisor’ for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim.” Under Title VII, an employer’s liability for workplace harassment depends on the status of the harasser. Where the harassing employee is the victim’s co-worker, the court applies a negligence standard: an employer is liable only if it knew or should have known of the harassing conduct and failed to take prompt and corrective immediate action to address it.
Where the harasser is the victim’s supervisor, the Supreme Court set forth different standards. If the supervisor’s harassment culminates in a tangible job detriment (i.e., “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits,” as in Burlington Industries v. Ellerth, 524 U. S. 742, 761 (1998)), the employer is strictly liable. If there is no tangible employment action, the employer may assert the Faragher-Ellerth affirmative defense, which protects an employer from liability where the employer can show that (1) it exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided, as in Faragher v. Boca Raton, 524 U. S. 775, 807 (1998) and Ellerth.
The court reasoned that the answer to the question presented in this case was implicit in the characteristics of the framework that the court adopted in Ellerth and Faragher, which draws a sharp line between co-workers and supervisors and implies that the authority to take tangible employment actions is the defining characteristic of a supervisor. As the court explained, its narrow definition accounts for the fact that many modern organizations have abandoned a hierarchical management structure in favor of giving employees overlapping authority with respect to work assignments. Further, the court reasoned that its interpretation of the concept of a supervisor is one that can be readily applied. The court also noted that the alleged harasser’s supervisor status will often be capable of being discerned before (or soon after) litigation commences and, “once this is known, the parties will be in a position to assess the strength of a case and to explore the possibility of resolving the dispute.” By contrast, the court pointed out that the EEOC’s standard would “very often be murky.”
In a dissent, Justice Ruth Bader Ginsburg argued that the problem with limiting “supervisor” to only those who have hiring and firing power is that it “strikes from the supervisory category employees who control the day-to-day schedules and assignments of others,” which “ignores the conditions under which members of the work force labor.” During oral argument, Justice Elena Kagan expressed concern that the narrow standard could result in a situation where a secretary whose boss “subjects that secretary to living hell, [a] complete hostile work environment on the basis of sex,” but because the choice of hiring or firing her lies elsewhere, is able to get away with it.
The court found, however, that a broad definition of “supervisor” is not necessary to guard against those concerns. In such cases, a victim can prevail simply by showing that the employer was negligent in permitting the harassment to occur, and, the court said, “the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor in determining negligence.”
Ultimately, even though the court confirmed that the narrow definition of supervisor remains the law, it is clear that harassment prevention training is critical to defending against such claims no matter who the alleged harasser is. It would be difficult for a plaintiff to show an employer is negligent where the employer maintains a well-publicized policy and procedure to handle harassment complaints and where all employees are regularly trained on that policy and procedure and appropriate workplace behavior.
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.