Yesterday, the U.S. Supreme Court decided Vance v. Ball State University, one of the most-anticipated decisions of the Court’s 2012 Term. The Vance case concerns who is considered a “supervisor” for purposes of establishing an employer’s liability for hostile work environment harassment under Title VII of the Civil Rights Act of 1964. In a 5 to 4 decision, the Court affirmed the decision of the Court of Appeals for the Seventh Circuit, from which the case arose, and other lower courts which had defined “supervisor” to include only those individuals who possess the authority to fire, demote, promote, transfer, discipline or take some other tangible action against a harassment victim. The Court rejected the definition of “supervisor” proposed by the federal government, appearing as amicus curiae, and found in the EEOC’s Enforcement Guidelines, which links “supervisor” status to the ability to exercise direction over the victim’s daily work.
In its prior decisions in Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth, the Supreme Court, applying basic principles of agency, held that an employer is strictly liable under Title VII for its supervisors’ “tangible” discriminatory acts, i.e. acts such as firing, demoting, reducing compensation, imposing discipline and changing job assignments.
When the alleged discrimination takes the form of subjecting an employee to a hostile work environment however, the Court in Faragher and Ellerth made a distinction between instances in which the hostile environment was created by the victim’s supervisor and instances in which the hostile environment was created by the victim’s co-worker. As to a supervisor-created hostile work environment, the Court held that the employer remains vicariously liable, but has available to it an affirmative defense. Specifically the employer can avoid liability by demonstrating that: (1) it took reasonable steps to prevent and promptly correct any harassing conduct and (2) the plaintiff unreasonably failed to take advantage of any employer-provided preventive or corrective opportunities. As to harassment by a co-worker, the Court ruled that vicarious liability did not attach in such situations, and that to establish employer liability, a plaintiff must prove that his or her employer was negligent in failing to prevent the harassment.
The Faragher and Ellerth cases did not provide a definition of “supervisor.” (The employers in those cases did not raise the issue.) Following those decisions, some courts, including the Seventh Circuit, concluded that to be considered a “supervisor” for purposes of Title VII, an individual must have the authority to take tangible action against the harassment victim, such as firing, demoting or imposing discipline. Citing to the EEOC Enforcement Guidelines, other courts, for example, the Second Circuit, held that an individual with the authority to direct the victim’s work is properly considered a “supervisor” for Title VII purposes. These courts recognized that the EEOC Guidelines do not have the force of law, but nonetheless found them persuasive.
The Supreme Court’s Opinion in Vance v. Ball State University
The plaintiff, Maetta Vance, an African-American who worked in the university’s Banquet and Catering Division, claimed that she had been consistently harassed because of her race by a white co-worker, Saundra Davis. Vance claimed Davis was her supervisor for purposes of her Title VII claim because Davis had the authority to direct her work. Vance conceded, however, that Davis did not have the authority to fire, demote, transfer or discipline her.
Writing for the Court, Justice Alito noted that “supervisor” has various meanings in different contexts, but held that in the Faragher and Ellerth context, the term is limited to those persons with the authority to take tangible action against the plaintiff. The Court reasoned that this limitation is implicit in the framework the Court adopted in those two cases; when holding an employer vicariously liable for actions taken by its employees, the focus is on the tangible employment actions “by which the supervisor brings the official power of the enterprise to bear on subordinates.”
The Court further reasoned that its definition of supervisor would be easy to apply in the litigation context. In most cases, a trial court could determine prior to trial whether the plaintiff’s alleged “supervisor” possessed the authority to take tangible action against the plaintiff, making jury instructions on this issue – even if needed – relatively simple. On the other hand, the Court viewed the “direct the work” definition of “supervisor” adopted by the EEOC Enforcement Guidelines as a “study in ambiguity.” In this regard, the Court noted that while Vance claimed that Davis had sufficient authority to direct her work to be considered her supervisor, the federal government, appearing as amicus curiae, was of the view that Davis did not sufficiently direct plaintiff’s work and thus was not plaintiff’s supervisor — even though the government advocated the “direct the work” definition. The Court concluded that under the “direct the work” definition, jury instructions would be complicated and confusing. In many cases, the jury would have to be instructed on two different paths of analysis – one if it found the harasser to be the plaintiff’s supervisor (vicarious liability) and another if it found to the contrary (negligence). The Court stressed the importance of keeping jury instructions simple in employment discrimination cases.
Implications of the Supreme Court’s Decision
Vance v. Ball State University is certainly a victory for employers, as its bright line definition of “supervisor” will undoubtedly exclude a host of employees who would be deemed “supervisors” under the “direct the work” definition. Employers, however, must be mindful that they may still be liable, under a negligence theory, for harassment committed by non-supervisory personnel. As the Supreme Court itself noted in Vance: “[A] plaintiff could still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant.” It is thus critical to the defense of any hostile work environment/harassment claim, whether involving a supervisor or a non-supervisor, that an employer be able to demonstrate that it provides training on harassment issues for its workforce and has in place policies and procedures for receiving harassment complaints and responding effectively to those complaints.
If you have any questions regarding the Vance decision’s implications for your company, employee training or employment litigation in general, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.
Richard S. Zackin is a Director in the Gibbons Employment & Labor Law Department.