U.S. Supreme Court Analyzes Definition of ‘Supervisor’
The United States Supreme Court, in the matter of Vance v. Ball State University 133 S.Ct. 2434 (2013), has weighed in on who qualifies as a supervisor of employees in order to assess liability for work place harassment. The Vance matter fills in the gaps left by the cases of Burlington Industries, Inc v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998).
In Vance, the Plaintiff, a black woman, worked as a substitute server at Ball State University’s (“BSU”) Banquet and Catering division of Dining Services. Over the course of her employment with BSU, the Plaintiff lodged numerous complaints of racial discrimination. Her complaints reached a head with her interactions with a fellow BSU employee Saundra Davis. Plaintiff alleged that Davis intimidated her by giving her a hard time, glaring at her, slamming pots and pans around her, and smiling at her suspiciously. Most notably for the purposes of the Vance opinion, Plaintiff claimed in her complaint that Davis was her supervisor which, alleged Plaintiff, would make BSU liable for Davis’ actions in creating a hostile work environment for Plaintiff. The case turns on whether Davis can be legally defined as a supervisor or as a fellow employee in order to hold BSU liable.
Pursuant to Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to discriminate on the basis of race or color and, through case law, an employer can be held liable under the aforesaid Act if it allows for the creation or perpetuation of a discriminatory work environment which, by definition, would unlawfully change the terms and conditions of employment. An employer can be held directly liable for a racially hostile work environment if it was negligent in taking remedial action upon a showing that it knew or should have known about the harassment; however, if the harasser is a supervisor, then an employer can be held vicariously, and strictly, liable for the actions of the supervisor. The Vance Court narrowed an employer’s vicarious, and strict, liability by ruling here that vicarious and strict liability will only attach when/if the supervisor takes a “tangible employment action”, such as exacting discipline upon or transferring or terminating the complaining employee. The rationale for finding an employer vicariously and strictly liable for the actions of a supervisor is that there is a presumption that a tangible employment decision taken by the supervisor must be officially sanctioned by the employer or, at the very least, delegated by the employer; otherwise, the supervisor would not have the authority to make such a decision. Indeed, the Court noted that even if a tangible employment action did not take place, liability can attach to an employer if a complaining employee can show the supervisor created a hostile work environment and the employer can not respond with an adequate affirmative defense for the supervisor’s actions. Affirmative defenses include the employer claiming that it exercised reasonable care to prevent and/or promptly correct the harassing behavior and/or the complaining employee unreasonably failed to take advantage of the opportunities provided by the employer to remedy the matter.
When attempting to apply the above to the Vance matter, the Court explored all of the various uses, permutations, and definitions of the word “supervisor” and concluded that its interpretation must fit within the interpretive framework of employment cases. The Court believed that the guidelines provided by the EEOC regarding who or what defines a supervisor are vague and ambiguous. The Court ruled that the ability to direct the tasks of another employee, at least on its face, is not sufficient to qualify someone as a supervisor. The key is whether the alleged supervisor can take a tangible employment action and, in fact, the Court ruled that so doing is the “defining characteristic” of a supervisor. Indeed, the Court indicated that a co-worker can certainly inflict psychological injury and even create a hostile work environment, but a co-worker cannot dock the pay of, or demote, another employee unless s/he is a supervisor.
Ultimately, the Court held that the Plaintiff simply provided insufficient evidence to suggest that her harasser directed, or was empowered to direct, her day-to-day activities by BSU, let alone take tangible employment action, sufficient to qualify her as a supervisor to warrant holding the employer vicariously and/or strictly liable.
Originally published on December 24, 2013 in The Legal Intelligencer Blog and can be found here.