Who's Your Supervisor? The United States Supreme Court's Answer to that Question May Surprise You
Vance v. Ball State University, et al., 570 U.S. ____ (2013)
When an employee is assigned to coordinate her colleagues' schedules and delegate duties to subordinates, is that individual her colleagues' co-worker or supervisor?
On June 24, 2013, the United States Supreme Court published an opinion in Vance v. Ball State University in which it clarified its definition of the word “supervisor.” The Court's holding in Vance could determine whether a company should be held liable in future workplace harassment cases.
Case Facts and History
Former Ball State University (“BSU”) employee Maetta Vance, an African-American woman, was hired to work in the dining services department at the institution in 1989. During the course of her employment, Vance began to work alongside a Caucasian woman named Saundra Davis.
Vance later asserted that Davis engaged in various forms of offensive conduct that included aiming “weird” looks at her, participating in intimidating behavior such as slamming pots and pans around her, and blocking her exit from an elevator.
Vance filed a lawsuit in the U.S. District Court for the Southern District of Indiana under Title VII of the Civil Rights Act of 1964. In her October 2006 complaint, Vance contended that, as Davis was her supervisor, the university was liable for her “creation of a racially hostile work environment.” Id. slip op. at 3.
The district court ultimately found in favor of BSU—noting that, “because Davis could not ‘hire, fire, demote, promote, transfer, or discipline' Vance,” the position filled by Davis didn't comport with the court's interpretation of the term “supervisor.” See id. The district court further held that, because BSU responded reasonably to those incidents about which it had been made aware, it could not be held liable in negligence. See id. The Seventh Circuit Court of Appeals affirmed the holding of the district court, and Vance appealed that decision to the United States Supreme Court.
Defining “Supervisor”
A company's liability for the actions of a non-supervisory employee is viewed differently from its liability for the actions of a supervisor. In 1998, the Supreme Court noted that employers could be held strictly liable when a supervisor's discriminatory conduct results in tangible employment actions (e.g., termination or demotion because of race, gender, etc.). {See Faragher v. Boca Raton, 524 U.S. 775, 807 (1998); see also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998).} The Court further indicated, however, that—even if a supervisor took no tangible employment action against an employee—an employer could be held vicariously liable for a supervisor's creation of a hostile work environment if unable to establish an affirmative defense. {See Ellerth, 524 U.S. at 763; see alsoFaragher, 524 U.S.at 803-805.} In instances of employee-on-employee harassment, however, a company is deemed “negligent with respect to … harassment if it knew or should have known about the contact but failed to stop it.” Ellerth, 524 U.S. at 759.
The federal circuit courts of appeals have been split along conservative and liberal lines for some time regarding the correct definition of “supervisor.” Some, such as the Seventh Circuit, restricted use of the term to those who had “the power to hire, fire, demote, promote, transfer, or discipline the victim.” {See Vance, 570 U.S. ____, slip op. at 8-9.} Others applied a more liberal interpretation of the term in keeping with the EEOC's Enforcement Guidance which defines “supervisor” as employees with “the ability to exercise significant direction over another's daily work.” {See id. slip op. at 9.}
In June 2013, the Supreme Court concluded the following :
We hold that an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect 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.'
{570 U.S. ____, slip op. at 9.} The Court specifically rejected the more liberal definition of the term “supervisor” espoused by the EEOC and various federal circuit courts. See id.
Although Saundra Davis directed co-workers in the BSU kitchen, the Vance Court concluded that such “leadership responsibilities” fell short of those required under its definition of “supervisor.” The Court then affirmed the judgment of the Seventh Circuit court in favor of the employer.
Take-Away
In light of the Supreme Court's holding in Vance, it's important for those representing plaintiffs in Title VII-based employment matters to clarify the nature of the duties performed by those whom their clients consider supervisors. They must determine whether those individuals wield the power to take tangible employment actions.
Once confronted with an assertion that an employer ought to be held vicariously liable for its supervisory employee's discriminatory conduct, a knowledgeable defense attorney may mount an Ellerth/Faragher defense—namely, that the employer exercised reasonable care to prevent and correct harassing conduct but that the employee failed to take advantage of the preventive or corrective opportunities provided.
In the wake of the Supreme Court's decision in Vance, however, the defense attorney may also contend that the so-called supervisor is actually a co-worker of the plaintiff-employee. In that event, the plaintiff's attorney must clearly demonstrate that the employer either knew or should have known of the offensive conduct but that it failed to take appropriate corrective action.
