Vance v. Ball State University Makes it More Difficult for Employees to Bring Workplace Harassment Lawsuits Against Employers
On June 24, 2013, the Supreme Court of The United States held by a 5-4 margin in Vance v. Ball State University that to be considered a “supervisor” for purposes of vicarious liability under Title VII, he or she must be empowered by the employer to take tangible employment actions against the victims (i.e., 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. In so holding, the Supreme Court has made it more difficult for Americans to sue businesses for discrimination.
Vance v. Ball State University arose from a series of internal complaints filed by Maetta Vance, a Ball State University catering employee, regarding harassment from a fellow employee, Saundra Davis. During the time in question, Davis, a white woman, was employed as a catering specialist in the Banquet and Catering division. The parties vigorously dispute the precise nature and scope of Davis’ duties, but they agree that Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. Vance’s workplace strife persisted despite BSU’s attempts to address the problem. As a result, Vance filed this lawsuit in 2006 in the United States District Court for the Southern District of Indiana, 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 BSU was liable for Davis’ creation of a racially hostile work environment. The District Court granted summary judgment to BSU. It held that BSU was not vicariously liable for Davis’ alleged actions because Davis, who could not take tangible employment actions against Vance, was not a supervisor. The Seventh Circuit affirmed.
Normally under Title VII, an employer’s liability for workplace harassment may depend 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. However, different rules apply in cases in which the harasser is a “supervisor.” If the supervisor’s harassment culminates in a tangible employment action (i.e., “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,” Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 761), the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that 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. Faragher v. Boca Raton, 524 U. S. 775, 807; Ellerth, supra, at 765.
Vance appealed the Seventh Circuit decision to the Supreme Court on the ground that Davis qualified as a supervisor. In the appeal, Vance argued that Davis wielded enough authority to qualify as a supervisor given that her job description gave her leadership responsibilities such as supervision and she had the ability to direct other employees tasks.
The Supreme Court declined to reverse Seventh Circuit decision that Davis did not qualify as a supervisor. In so holding, the Court emphasized that the Seventh Circuit’s understanding of the concept of a “supervisor,” is easily workable: “In general usage, the term ‘supervisor’ lacks a sufficiently specific meaning to be helpful for present purposes.” The Court went on to explain that the answer to the question presented in this case (who qualifies as a “supervisor?”) is implicit in the characteristics of the framework that the Court adopted in Ellerth and Faragher, which draws a sharp line between co-workers and supervisors and implies that the authority to take tangible employment actions is the defining characteristic of a supervisor. Ellerth, supra, at 762.
The Court further states that Vance misread Faragher and Ellerth in claiming that those cases support an expansive definition of “supervisor” because, in her view, at least some of the alleged harassers in those cases, whom the Court treated as supervisors, lacked the authority that the Seventh Circuit’s definition demands. The Court explains that in Ellerth, there was no question that the alleged harasser, who hired and promoted his victim, was a supervisor. And in Faragher, the parties never disputed the characterization of the alleged harassers as supervisors, so the question simply was not before the Court. Pp. 14–18.
In sum, because the Seventh Circuit definition of “supervisor” fits within previous Supreme Court case law rationale and is trumpeting the virtues of simplicity and administrability, the Court restricts supervisor status to those with power to take tangible employment actions.
In Vance v. Ball State University, a dissenting opinion by Justice Ginsberg (with whom Justice Breyer, Justice Sotomayor and Justice Kagan joined) demonstrates that not all agree that “supervisors” are limited to those who make the hiring, firing, promoting, demoting and reassigning decisions. Justice Ginsberg stated that the majority made a drastic move by rejecting the already determined rationale provided by the Equal Employment Opportunity Commission (EEOC) about who should qualify for “supervisor” status especially given that “until today, our [Supreme Court] decisions have assumed that employees who direct subordinates’ daily work are supervisors.” Justice Ginsberg agreed the more proper line of questioning to determine who qualifies for “supervisor” status would be the one the EEOC has already determined which is:
Whether the employer gave the alleged harasser authority to take tangible employment actions or to control the conditions under which subordinates do their daily work? If the answer to either inquiry is yes, vicarious liability is in order, for the superior-subordinate working arrangement facilitating the harassment is of the employer’s making.
Justice Ginsberg further attacks the idea that a clear rule is necessary given that she stated:
That the Court has adopted a standard, rather than a clear rule, is not surprising, for no crisp definition of supervisor could supply the unwavering line the Court desires. Supervisors, like the workplaces they manage, come in all shapes and sizes. Whether a pitching coach supervises his pitchers (can he demote them?), or an artistic director supervises her opera star (can she impose significantly different responsibilities?), or a law firm associate supervises the firm’s paralegals (can she fire them?) are matters not susceptible to mechanical rules and on-off switches. One cannot know whether an employer has vested supervisory authority in an employee, and whether harassment is aided by that authority, without looking to the particular working relationship between the harasser and the victim.
The Supreme Court’s decision adopting the narrow standard will decrease the number of individuals who may be deemed a “supervisor” and accordingly decrease an employer’s exposure to liability for hostile work environment claims in the future.
For practitioners, the most important lesson is simple. If you are representing an employee that is making a Title VII claim against supervisors and their employers, you must be sure that the “supervisor” has the power to make hiring, firing, promotion, demotion or reassigning decisions regarding other employees. Going forward, an employee will not be considered a “supervisor” simply because they have the ability to manage employees.