US Supreme Court Establishes Employer Friendly Definition of “Supervisor” for Employer Liability for Title VII Employment Discrimination

The United States Supreme Court decided two very closely watched employment law cases interpreting harassment and discrimination under Title VII of the 1964 Civil Rights Act.  The first case decided 5-4 in favor of the employer, Vane v. Ball State University [1], addressed a question left open by two previous Supreme Court cases[2], who qualifies as a “supervisor” so as to hold an employer vicariously liability under Title VII for an employee’s unlawful harassment or discrimination?

Case #1

In this case, Maetta Vance, an African-American woman, was employed as a full-time catering assistant with Ball State University.  She initially filed internal complaints with BSU and charges with the Equal Employment Opportunity Commission (EEOC), alleging racial harassment and discrimination by a fellow employee, Davis, a white woman and catering specialist employed in the same division as Vance.

The situation persisted causing Vance to file a lawsuit in 2006 claiming that she had been subjected to a racially hostile work environment in violation of Title VII.  While the parties agreed that Davis did not have the authority to fire, hire, promote, or transfer Vance, in her capacity as a lead caterer, Davis controlled the day to day duties of Vance.  In her complaint, she alleged that Davis was her supervisor and that BSU was liable for Davis’ creation of a racially hostile work environment.

The plaintiff, Vance, argued that a person is a “supervisor” if he/she has authority to control someone else’s daily activities and evaluate performance.  The employer argued that a “supervisor” must have more power, such as the ability to take a tangible actions including: “hiring, firing, demoting, promoting, transferring or disciplining” the employee.[3]

Under Title VII of the Civil Rights Act, an employer’s liability for harassment and discrimination depends on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions.[4]  However, if the harassing employee is the victim’s supervisor different rules apply.

Case #2

In two companion cases from 1998, Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton, the Supreme Court held that an employer is strictly liable under Title VII for discrimination or harassment by an employee who is a “supervisor” where the harassment amounts to tangible employment actions.

Where there is no adverse employment action, the employer is still vicariously liable for the supervisor’s hostile work environment unless the employer can establish as an affirmative defense that (1) the employer 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.[5]  Under this framework, therefore, it matters whether the harasser is a “supervisor” or simply a co-worker.

Writing for a five-to-four majority, Justice Alito’s opinion adopted the rule proposed by the employer, holding that for purposes of this Title VII rule, to be a “supervisor,” a person must have the power to take a “tangible employment action” against the victim.[6]

That is, he must be able 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.”[7]  The employer was entitled to win the case because Vance had not adequately shown that the person who discriminated against her was a supervisor under the Court’s definition.

Takeaway 

Thus, for the purposes of Title VII of the Civil Rights Act, “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,” such as significant change in employment status, responsibilities, or changes in benefits.[8]

[1] Vance v. Ball State University, 520 U.S. ___ (2013)

[2] Burlington Industries, Inc. v. Ellerth 524 U. S. 742 (1998), Faragher v. Boca Raton, 524 U. S. 775 (1998),

[3] 2008 WL 4247836, *12 (quoting Hall v. Bodine Elect. Co., 276 F. 3d 345, 355 (CA7 2002)

[4] Vance v. Ball State University, 520 U.S. ___ (2013)

[5] Faragher, at 807; Ellerth, at 765.

[6] Vance v. Ball State University, 520 U.S. ___ (2013)

[7] Vance v. Ball State University, 520 U.S. ___ (2013); Ellerth, 524 U.S. at 761

[8] Vance v. Ball State University, 520 U.S. ___ (2013)

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