Supreme Court Narrows Definition of "Supervisor" Under Title VII
Earlier this week, the United States Supreme Court narrowed the definition of “supervisor” for purposes of employment-related claims. Specifically, on Monday, June 24, 2013, the Supreme Court ruled in Vance v. Ball State University, et al., that, under the federal Title VII discrimination statute, an employer can be held vicariously liable for an employee’s unlawful harassment only where that particular employee has been empowered with the authority “to take tangible employment actions against the victim.” The Court’s 5-4 decision resolves a circuit split concerning the extent of authority an employee must exercise and be granted to be classified as a “supervisor.”
The term “supervisor” is not defined in Title VII. Instead, it was adopted by the Supreme Court as a way to identify those individuals whose actions could give rise to vicarious employer liability in the two earlier decisions of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). As established in Ellerth andFaragher, the standard to determine the employer’s liability is different based on whether or not the alleged harasser held a “supervisor” position. First, where the alleged harasser is only the individual’s co-worker (and not a supervisor), the employer is liable only if it was negligent in failing to prevent the harassment from taking place. Conversely, where the alleged harasser is the individual’s supervisor, and the harassment results in an adverse tangible employment action, the employer will be strictly liable. However, if no tangible employment action is taken, the employer can avoid liability if it can demonstrate, as an affirmative defense, that (1) it exercised reasonable care to prevent and eliminate harassment, and (2) that the plaintiff unreasonably failed to take advantage of the preventive or remedial opportunities provided by the employer.
Despite the central focus in Ellerth and Faragher on the status of the alleged harasser, neither case presented the Court with the question of what degree of authority an individual must have imbued to him or her so as to be classified as a “supervisor.” This precise issue reached the court in Vance, and provided the Supreme Court with its first opportunity to address this matter. In Vance, an African American woman (Maetta Vance) claimed that a white Ball State University employee (Saundra Davis) created a racially hostile work environment in violation of Title VII. The trial court held that the University could not be liable for Davis’ alleged harassment because she did not have authority to “hire, fire, demote, promote, transfer, or discipline” Vance and, therefore, was not a supervisor. The U.S. Court of Appeals for the Seventh Circuit affirmed the lower court’s decision and Vance appealed to the Supreme Court.
In holding that “the authority to take tangible employment actions is the defining characteristic of a supervisor,” the Supreme Court rejected guidance issued by the Equal Employment Opportunity Commission (“EEOC”) – and adopted by several other circuit courts –that links supervisor status, in part, to an employee’s ability to direct another’s daily tasks. Accordingly, according to the Majority decision, “an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, 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.’”
Rather than adopt the EEOC’s definition of a supervisor, which the Supreme Court characterized as “nebulous,” “vague” and “a study in ambiguity,” the Supreme Court emphasized that its own definition is “easily workable.” Significantly, the Supreme Court explained that, because of its newly-announced definition, parties will be able to determine whether an alleged harasser was a supervisor even before litigation commences, thereby permitting the parties to assess a case’s strength, and to potentially resolve a dispute, before filing suit. Furthermore, where parties fail to reach an early resolution, the Supreme Court’s framework “can be applied without undue difficulty at both the summary judgment stage and at trial” and will “very often [resolve the question of supervisor status] as a matter of law before trial.” Indeed, the Supreme Court noted that its definition permits supervisory status to generally be determined by “written documentation,” as opposed to the EEOC’s approach, which requires litigants to engage in a “highly case-specific evaluation” of a number of factors including how often the alleged supervisor directs an employee’s daily activities and how many tasks the individual directs.
The Supreme Court’s ruling in Vance narrows the class of employees whose actions can potentially hold an employer vicariously liable for creating a hostile work environment under Title VII. Based on the Supreme Court’s indication that supervisory status generally can be determined through written documentation, employers should review the job descriptions of individuals in supervisory roles to ensure their accuracy. Additionally, employers should identify which of their employees are vested with the authority to take tangible employment actions and provide them with anti-harassment training which is targeted to the workplace issues that supervisors are likely to encounter.