Labor Law: Harassment and discrimination suits can turn on the distinction between a supervisor and a co-worker
Supreme Court to resolve circuit split by defining “supervisor” status under Title VII
Deciding who is a supervisor is an important and complex decision for an employer. Employers must ensure their designation of a particular employee as a supervisor is valid under applicable law and can be upheld in litigation. For example, an employer’s liability can raise the question of whether the harasser was the employee’s supervisor or co-worker. If the harasser was the employee’s supervisor, the employer is strictly liable for any harassment that culminates in a tangible employment action (e.g., firing, demotion, etc.). If the harasser was the employee’s co-worker, the employer is liable only if it knew or should have known about the harassment. For this reason, the supervisory status of an accused harasser is a hotly debated issue.
It is against this backdrop that on June 25, the Supreme Court granted certiorari in Vance v. Ball State University to resolve a circuit court split over whether an employee that directs other workers’ day-to-day activities, but lacks authority to take tangible employment actions against such workers, is a supervisor under Title VII.
7th Circuit affirms district court’s dismissal of racial harassment claim
Maetta Vance, an African-American catering assistant, alleged that her Caucasian co-workers and supervisors subjected her to harassment based on her race. One of the harassers was Saundra Davis, who allegedly directed Vance’s day-to-day work activities and was not required to clock in and out as other hourly employees were required to do. Vance filed verbal and written complaints for several years, some of which Ball State investigated and responded to.
The U.S. District Court for the Southern District of Indiana granted summary judgment in favor of the university, dismissing Vance’s harassment claims. The 7th Circuit affirmed the district court’s decision, holding that Vance failed to establish a basis for employer liability. The 7th Circuit reasoned that Davis was not a supervisor with the authority to hire, fire, demote, promote, transfer or discipline employees and was merely a co-worker despite her authority to direct Vance’s daily work activities. The 7th Circuit also held that because Davis was merely a co-worker, and not a supervisor, the university was not strictly liable for the harassment. The 7th Circuit explained that the university also was not liable for co-worker harassment because it took appropriate corrective action in response to Vance’s harassment complaints. Further, the 7th Circuit ruled that Vance failed to show that Davis’ conduct was motivated by race and that the harassment amounted to an actionable hostile work environment.
Supreme Court grants certiorari despite significant objections
Vance requested the Supreme Court’s review of the 7th Circuit’s decision, arguing that the widespread circuit court split over the definition of “supervisor” required resolution. Vance noted that employers should not be permitted to avoid Title VII liability by centralizing formal supervisory authority to take tangible employment actions in a handful of supervisors detached from employees’ day-to-day work activities.
In contrast, the university argued that the 7th Circuit’s decision did not contradict any court decision or administrative guidance, as it was based on Vance’s lack of evidentiary support. The Solicitor General agreed with the university’s position that Vance’s case was not the appropriate case for Supreme Court review. However, the Solicitor General noted that there is a circuit split in need of resolution with the 1st, 7th and 8th Circuits advocating a restrictive definition of “supervisor” that encompasses only employees with the authority to take tangible employment actions, and the 2nd, 4th and 9th Circuits advocating a broader definition of “supervisor” that includes employees with the authority to direct day-to-day work activities, a view backed by the Solicitor General and the Equal Employment Opportunity Commission (EEOC). The Solicitor General further argued that the 7th Circuit’s position that supervisors must have the authority to take tangible employment actions is contrary to Supreme Court precedent, EEOC guidance and Title VII’s primary objective of not only redressing but also preventing harm to employees.
Important guidance for employers
The Supreme Court’s decision in Vance will impact the landscape for employment discrimination, harassment and almost every other employment claim dependent on an employee’s supervisory status. Should the court adopt the 7th Circuit’s restrictive definition of supervisors, employers may see a decrease in harassment and discrimination cases. Should the Supreme Court opt for the broader definition of supervisors, employers may see an increase in those cases.
While awaiting the Supreme Court’s decision, employers should take the opportunity to review their designation of employees as supervisors and ensure that such designations are likely to hold up in court. Employers should also provide management-level employees (and their workforce in general) with appropriate anti-harassment, anti-discrimination and anti-retaliation training to avoid the onset of such claims. Moreover, employers should ensure that harassment, discrimination and retaliation complaints are promptly and adequately investigated and addressed so as to avoid liability for failing to take appropriate corrective action. These basic steps may help employers minimize, if not avoid, costly liability under Title VII and similar statutes.