On June 24, the Supreme Court issued its decision in Vance v. Ball State University et al., No. 11-556. In Vance, the Court considered claims of workplace harassment and drew a sharp line between supervisors and co-workers for purposes of employer liability. The distinction is critical because the status of the “harasser” determines what analysis is used for Title VII claims and what defenses are available to an employer when a victim brings a lawsuit for a hostile work environment. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling the work environment.
If, however, the harasser is a supervisor, then the employer is strictly liable for the harassment if the harassment culminates in a “tangible employment action,” that is, a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different job responsibilities or a decision causing a significant change in benefits. If there is no tangible employment action, the employer may escape liability for the harassment by a supervisor, but only if it can establish, as an affirmative defense, that it exercised reasonable care to prevent and correct any harassing behavior and the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that it provided.
But just who exactly is a supervisor? Until the Supreme Court’s announcement, the contours of what distinguishes a supervisor from a co-worker were somewhat undefined. The Equal Employment Opportunity Commission (EEOC) has advanced enforcement guidelines that define “supervisor” broadly and include any individual who “has authority to direct the employee’s daily work activities.”
In Vance, writing for the majority of the Court, Justice Alito walked back that broad definition and held that for purposes of Title VII, supervisors are a much narrower class of individuals: “[A]n employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.”
The facts of Vance make it apparent why the distinction is so critical. Maetta Vance is an African-American catering employee at Ball State University. She alleged that a white employee, Saundra Davis, had created a racially hostile work environment by giving her a hard time at work by glaring at her, slamming pots and pans around her and intimidating her.
She further alleged that Davis blocked her on an elevator with her cart and often gave her weird looks. Vance filed internal complaints with her employer and charges with the Equal Employment Opportunity Commission (EEOC) but the problem persisted despite Ball State’s attempts to address the issue. Accordingly, Vance filed a lawsuit claiming, among other things, that she had been subjected to a racially hostile work environment in violation of Title VII.
In her complaint, she alleged that Davis was her supervisor and that Ball State was liable for the hostile work environment created by Davis. Although the parties disputed the exact nature of the relationship between Vance and Davis, they agreed that Davis did not have the power to hire, fire, demote, promote, transfer or discipline her. This proved fatal to her claim since she was unable to prove that Ball State was liable under the more lenient co-worker negligence standard.
The Court’s decision in Vance leads to a series of key takeaways for employers:
• Employers who use coworkers to direct other employees in their work—for example, for technical supervision, to occasionally fill in, to serve as leads or working foreman, etc.—will benefit from clear, written documentation—such as employee handbooks and job descriptions—which specifies what supervisory authority an employee does and does not have, including whether the employee has the authority to hire, fire or take other tangible employment actions.
• Job descriptions or other written documentation are not the end of the story. The question of whether an employee is a “supervisor” will be determined by actual practice. While it may be tempting to limit decision-making authority into the hands of just a few, if those individuals effectively delegate the decision-making power to others—due to lack of personal interaction with the affected employee, time constraints or simple blurring of responsibilities—those other employees will nevertheless be supervisors under the law.
• It is important to remember that a supervisor may still be a supervisor under the Court’s narrow definition even if his or her decisions regarding tangible employment actions require higher
level approval.
• Finally, employers should still focus on preventing harassment by providing regular training to all employees (including those who are not technically “supervisors” under Title VII), promptly and thoroughly investigating all claims of harassment, discrimination and retaliation, and taking prompt and effective action to end any harassment that does occur.
Amy Angel, a Partner at Barran Liebman, handles employment litigation and provides employer advice and solutions. She can be reached at 503-228-0500 or aangel@barran.com. Angel will be speaking at Barran Liebman’s Annual Employment, Benefits and Labor Law Seminar in September. For more information on this complimentary seminar, please visit www.barran.com.
