The U.S. Supreme Court appeared to struggle over the question of who qualifies as a supervisor under federal nondiscrimination laws. Hearing oral arguments in a case from the 7th U.S. Circuit Court of Appeals on Nov. 26, 2012, the high court addressed the issue, left unanswered in previous Supreme Court decisions, of when a “supervisor” includes an employee who oversees and directs other workers’ daily tasks, but has no authority over their formal employment status, (Vance v. Ball State Univ., No. 11-556).
In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998), the Supreme Court held that under Title VII of the Civil Rights Act, an employer is liable for severe or pervasive workplace harassment by a supervisor of the victim. If the harasser was the victim’s co-employee, however, the employer is not liable absent proof of negligence.
In the case before the court, the 7th Circuit affirmed summary judgment to Ball State University on the Title VII claim of Maetta Vance, a black catering assistant who claimed that white co-workers and supervisors racially harassed her, holding, among other things, that Vance failed to establish a basis for employer liability based on purported harassment by either a co-worker or a supervisor.
Vance had contended that one of the alleged harassers, Saundra Davis, actually was a supervisor and not a co-worker, because Davis directed her work and did not “clock in” as did other hourly employees. The 7th Circuit, however, held that even harassment by a person whom the employer deemed a “supervisor” and who had the authority to direct and oversee the victim’s daily work could not give rise to liability, because the harasser did not also have the power to take formal employment actions against her.
In contrast, the 2nd, 4th and 9th U.S. circuit courts of appeal have held that the Faragher and Ellerth “supervisor” liability rule applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work. The U.S. Equal Employment Opportunity Commission (EEOC) has taken this position, also.
The 1st and 8th circuits, along with the 7th, have held that the rule is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.
“This case is a potential game changer,” according to Ron Chapman Jr., an attorney at Ogletree Deakins’ Dallas office. “If the Supreme Court agrees with the EEOC’s definition of ‘supervisor,’ it will greatly expand the risk of liability for all employers with more than 15 employees.”
None of the Lawyers Agree with 7th Circuit Test
The three attorneys arguing before the court all seemed to agree that an employee who directs other workers’ day-to-day activities may, under some circumstances, be a “supervisor” under Title VII, even if he or she lacks authority to hire, fire, demote, promote, transfer or discipline workers.
Representing Vance was Daniel R. Ortiz of the University of the Virginia School of Law Supreme Court Litigation Clinic in Charlottesville, Va. He argued that applying the 7th Circuit’s definition of “supervisor” would produce “truly perverse results.”
Under the 7th Circuit’s rule, Ortiz said, an employee who directs another worker’s day-to-day tasks and essentially manages that worker’s “whole job period” would not be considered a supervisor. Meanwhile, a human resources official whom an employee never sees, but who does have the authority to affect the employee’s formal employment status, would be considered a supervisor, Ortiz said.
U.S. Deputy Solicitor General Sri Srinivasan, representing the federal government, agreed that the 7th Circuit’s approach has “some serious flaws,” and advocated in favor of the EEOC’s viewpoint, that a Title VII “supervisor” includes an employee who controls another worker’s daily work activities.
Gregory G. Garre of Latham & Watkins in Washington, D.C., represented Ball State, and seemed to agree with Ortiz and Srinivasan. He argued that the high court’s precedent should compel the justices to reject the 7th Circuit’s definition, and to provide guidance on “on how to apply the EEOC and the 2nd Circuit standard.”
He urged the justices to affirm summary judgment to Ball State, however, asserting that the factual record shows that Davis would not qualify as Vance’s supervisor even under a broader standard.
Justices Try to Determine Where to Draw the Line
Several justices questioned where best to draw the line in determining whether an employee is a supervisor or merely a co-worker. Chief Justice John Roberts Jr., addressing Ortiz, posited a situation in which the most senior of five employees assigned to work in a single room gets to choose the background music, and tells a colleague: “I know you don’t like country music; if you don’t date me, it’s going to be country music all day long.”
“I would have thought, under your theory, that means that senior employee is a supervisor,” Roberts said. “I would have thought the benefit of the 7th Circuit was that you don’t have to go on a case-by-case basis.”
In contrast, Justice Elena Kagan suggested that the 7th Circuit test might be too lenient on employers.
She said, for example, that a university could be freed from liability if a professor subjected a secretary to “living hell, complete hostile work environment on the basis of sex,” solely because the secretary could not be fired by the professor, but rather by the head of secretarial services.
“The court may be left fashioning some type of hybrid test that adopts the ‘sliding scale’ of the 2nd Circuit and some of the factors that the 7th Circuit relied on,” Steve Miller, an attorney in Fisher & Phillips’ Chicago office told SHRM Online.
Whatever rule the court adopts, “Employers may have to take a look at their lower level supervisors to determine if they satisfy the definition of supervisor under Title VII,” he said. Employers might decide to increase harassment training for these employees. Another possibility would be for an employer to try to centralize supervisor responsibility, putting authority over employees’ day-to-day job functions in fewer hands. Of course, whether this will be possible or advisable depends on the types of jobs and the nature of the workplace, Miller concluded.
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.