The Supreme Court To Define Supervisor For Purposes of Title VII

In a case that could have far reaching implications for employers, the Supreme Court has agreed to hear Vance v. Ball State University, a case in which the Court will define “supervisor” for purposes of determining an employer’s liability for harassment under Title VII.

Title VII of the Civil Rights Act of 1964, prohibits employment discrimination on the basis of race, color, religion, sex, or national origin with case law stipulating that employers can be found liable for discrimination as a result of workplace harassment that creates a hostile work environment.  (42 U.S.C. 2000e-2(a); See, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998)).  Title VII imposes liability on employers for the actions of its agents, and the Supreme Court has held that employers are vicariously liable for a supervisor’s severe or pervasive workplace harassment of employees over whom the supervisor has immediate authority. (42 U.S.C. 2000e(b) (de­fining “employer” to include an agent of the employer); Faragher v. City of Boca Raton, 524 U.S. 775, 791 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)).

Unfortunately, neither Title VII nor the leading cases setting forth an employer’s vicarious liability specifically define “supervisor”, and since the issuance of the Faragher and Burlington Industries decisions, various circuit courts have weighed in with their own definitions.  The resulting problem is that the circuit split has made it extremely difficult to determine who is a supervisor for purposes of determining whether an employer is vicariously liable under the Act.  Adding to the complication is the Equal Employment Opportunity Commission’s (EEOC) definition of supervisor which conflicts with several of the circuit decisions.

The First and Eighth Circuits have adopted the definition of supervisor set forth by the Seventh Circuit in Parkins v. Civil Constructors of Illinois, Inc. 163 F.3d 1027 (7th Cir. 1998).  In that case, the court reasoned that the duties performed by an employee, rather than the employee’s title, govern whether an employer can be held vicariously liable for the employee’s actions.  Based on this reasoning, the court held that a supervisor is an employee who possesses the power to make “consequential employment decisions” such as hiring, firing, promotion/demotion, or carry out other disciplinary actions. (Noviello v. City of Boston, 398 F.3d 76, 95-96 (1st Cir. 2005) (“without au­thority “to hire, fire, demote, promote, transfer, or disci­pline an employee,” a harasser should be regarded as an ordinary coworker.); Weyers v. Lear Operations Corp., 359 F.3d 1049, 1057 (8th Cir. 2004)).

In contrast, the Second, Fourth, and Ninth Circuits have adopted the EEOC’s definition of supervisor set forth by the EEOC in the publication titled Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors.According to the EEOC and these three circuits, an individual qualifies as an employee’s supervisor if: 1)  the individual has authority to undertake or rec­ommend tangible employment decisions affecting the employee; or 2) the individual has authority to direct the em­ployee’s daily work activities. (Mack v. Otis Elevator Corp., 326 F.3d 116 (2d Cir.), cert. denied, 540 U.S. 1016 (2003) (“mechanic in charge qualified as a supervisor because he assigned the vic­tim’s daily tasks, oversaw her work, assigned overtime, and was typically the senior employee on site”); Whitten v. Fred’s, Inc., 601 F.3d 231 (4th Cir. 2010); Dawson v. Entek Int’l, 630 F.3d 928, 937, 940 (2011)(“ a victim’s trainer and immediate manager could be a supervisor if he engaged in supervision of or had authority over [the employee].”).

The conflict created by these cases is what level of authority must an individual exercise over an employee to be deemed a supervisor; must the individual have the power to hire, fire or discipline the employee, or does the individual merely need the authority to direct the employee’s activities?  That is a question that will not be definitively answered during the 2012-2013 term of the Supreme Court as a result of the case of Vance v. Ball State University.

This case arises out of alleged racial harassment. Specifically, Vance was employed in the catering department of Ball State University, and alleges that she was subjected to racially derogatory remarks by a person she asserts directed her work, and was, therefore, in a supervisory role.  The district court found that the person who made the remarks was not a supervisor and granted summary judgment to Ball State.  The U.S. Court of Appeals for the Seventh Circuit affirmed citing Parkins as the controlling authority and asserting that the alleged harasser was not a supervisor because that person did not have the power to hire, fire, or discipline Vance.

This is an important case that could have broad reaching implications for employers. The law is clear that when a supervisor harasses an employee, the employer is vicariously, and strictly liable for the actions of that supervisor.  However, if a co-worker, rather than a supervisor, is the harasser, then there is a more difficult obstacle for the employee to overcome since the employee has to show the co-worker’s harassment was due to the employer’s negligence or was the fault of the employer.  Should the Court decide that a supervisor is someone who merely oversees an employee’s actions, then the bar for employee harassment suits would be much lower, and employers would be subjected to much higher standards.  As a result, employers would be susceptible to many more harassment claims under Title VII.

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