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High Court Narrowly Defines ‘Supervisor’

By Joanne Deschenaux  6/24/2013
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An employee is a "supervisor" of another employee for purposes of liability under Title VII of the 1964 Civil Rights Act only if he or she is empowered by the employer to take tangible employment actions against the other employee, the U.S. Supreme Court ruled June 24, 2013 (Vance v. Ball State Univ., No. 11-556). The high court rejected the position taken by several federal appellate courts and the Equal Employment Opportunity Commission that "supervisors" include those whom the employer vests with authority to direct and oversee the other employee's daily work.

This distinction is important because, under Title VII, an employer's liability for workplace harassment often depends on the harasser's status. If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling the working conditions.

In cases in which the harasser is a "supervisor," however, different rules apply. Under standards established in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998), if the supervisor's harassment culminates in a tangible employment action—defined as "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"—the employer is strictly liable. But if no tangible employment action is taken, the company may escape liability by establishing that it exercised reasonable care to prevent and correct any harassing behavior and that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that it provided.

Victory for Employers

In the Vance case 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. The court determined, 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, was actually a supervisor, not a co-worker, because Davis directed her work and did not "clock in" like 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 a 5-4 vote, the Supreme Court affirmed the 7th Circuit's decision.

"The Supreme Court once again split along ideological lines," Bernard Bobber, vice chair of Foley & Lardner's Labor & Employment practice, told SHRM Online, with Justice Anthony Kennedy as the swing vote, joining "the so-called conservative justices"— Chief Justice John Roberts and Justices Clarence Thomas, Antonin Scalia and Samuel Alito, the opinion's author—to form the five-person majority.

"The majority decision hands a victory to business," Bobber said. The conservative justices support a view that "provides clarity to businesses and limits the scope of an employer's liability for workplace harassment."

'Supervisor' Has Many Meanings

Alito noted that Vance, the employee in the case, erred in relying on the meaning of "supervisor" in general usage and in other legal contexts because the term "has varying meanings, both in colloquial usage and in the law."

In any event, he wrote, "'Supervisor' is not a term used by Congress in Title VII." Rather, the high court adopted the term in Ellerth and Faragher as a label for the class of employees whose misconduct may give rise to employer liability in the absence of employer negligence. The two cases draw a sharp line between co-workers and supervisors and imply that the authority to take tangible employment actions is the defining characteristic of a supervisor, Alito noted. "The interpretation of the concept of a supervisor adopted today is one that can be readily applied."

In addition, Alito added that this approach will not leave employees unprotected against harassment by co-workers who possess some authority to assign daily tasks. In such cases a victim can prevail simply by showing that the employer was negligent in permitting the harassment to occur, he wrote, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor in determining negligence.

"This is a win-win decision—both employers and employees benefit," said Katharine Parker, co-head of Proskauer's employment law group. "The court has articulated a practical, workable standard that both plaintiffs and management attorneys can apply."

However, Justice Ruth Bader Ginsburg wrote a sharply worded dissenting opinion, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. "The Court today strikes from the supervisory category employees who control the day-to-day schedules and assignments of others, confining the category to those formally empowered to take tangible employment actions." The limitation imposed by the court "ignores the conditions under which members of the workforce labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation's workplaces," Ginsburg wrote.

Train Employees

"This decision reinforces the importance of employers having appropriate internal policies prohibiting discrimination and harassment and appropriate internal complaint procedures," Parker said. 

"For employers, this case is an excellent reminder to review and update workplace harassment policies and to retrain employees on these," Bobber said. "Because of the ruling, more harassment claims will be analyzed under the negligence standard, and, therefore employers need to demonstrate that they remained diligent in preventing illegal harassment."

Joanne Deschenaux, J.D., is SHRM's senior legal editor.

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