Petitioner Maetta Vance contends that Saundra Davis, a catering specialist, had made Vance’s life at work contentious through physical acts and racial harassment. Vance sued her employer, respondent Ball State University, for workplace harassment by a supervisor. To win a lawsuit for co-worker harassment under Title VII of the Civil Rights Act of 1964, it is necessary to show that the employer is negligent in responding to complaints about harassment; however, to win a lawsuit for harassment by a supervisor, the employer does not have to be negligent because Title VII imputes the supervisor’s acts to the employer. Vance asserted that Davis was a supervisor although Ball State claimed Davis was not actually Vance’s supervisor. The District Court and Court of Appeals for the Seventh Circuit determined that Davis was not Vance’s supervisor because Davis did not have the power to direct the terms and conditions of Vance’s employment. Additionally, both courts found that Ball State had an adequate system in place for reporting and investigating claims of harassment under Title VII and thus the university could not be negligent. If Vance wins, the definition of supervisor under Title VII will expand to include more than just those who can hire, fire, demote, promote, or discipline an employee. If Ball State wins, the definition of supervisor under Title VII may expand; however, it would likely be limited to persons who actually control an employee’s daily activities.
Questions as Framed for the Court by the Parties
In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the Supreme Court held that under Title VII, an employer is vicariously liable for severe or pervasive workplace harassment by a supervisor of the victim. If the harasser was the victim's co-employee, however, the employer is not liable absent proof of negligence. In the decision below, the Seventh Circuit held that actionable 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 vicarious liability because the harasser did not also have the power to take formal employment actions against her. The question presented is:
Whether, as the Second, Fourth, and Ninth Circuits have held, the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim's daily work, or whether, as the First, Seventh, and Eighth Circuits have held, the rule (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victims.
Issue
Whether, for purposes of employer liability for racial harassment in the workplace, an employee must have the power to tangibly affect the employment status of the victim in order to be considered a supervisor.
Facts
Vance began working for the Ball State University Banquet and Catering Division of University Dining Services in 1989. She first worked as a substitute server, but she became a part-time catering assistant in 1991 and a full-time catering assistant in 2007. Sometime before 2001, Vance and co-worker Saundra Davis engaged in an oral altercation that ended with Davis’s slapping Vance in the head. Vance notified her employer about the incident, but she did not pursue a formal complaint because shortly thereafter Davis transferred to another department to accept a full-time position.
In 2005, Davis returned to the Banquet and Catering Division as a Catering Specialist, where she was responsible for supervising and providing leadership for kitchen assistants and substitutes. The conflict between Davis and Vance resumed on September 23, 2005 when Davis blocked Vance from exiting an elevator, saying, “I’ll do it again,” referencing the prior slapping incident. Around the same time, Vance overheard Davis refer to her with epithets like “Sambo” and “Buckwheat,” and she occasionally did so in the presence of other employees. Also in September 2005, Vance was told that co-worker Connie McVicker had bragged about McVicker’s family ties to the Ku Klux Klan and referred to Vance using a racial slur. In November 2005, Vance reported that McVicker had called her a “porch monkey,” and in December 2005 Vance complained that Davis glared at her and slammed pots and pans around her. In May 2006, Vance alleged that Davis blocked her way at the elevator. Vance filed suit in October 2006, alleging hostile working environment and retaliation claims under Title VII. In August 2007, Vance reported that Davis taunted her by asking, “Are you scared?” and referenced the prior slapping incident. Throughout this time, Vance was consigned to “entry level duties” and when both Vance and Davis were in the kitchen, Davis could assign Vance certain duties, but usually work assignments came from the chef.
After each of these events, Vance filed formal complaints with supervisor Bill Kimes. Kimes investigated each of these incidents and after the May 2006 incident, Kimes and other managers tried to separate Vance and Davis. Additionally, Ball State counseled Vance and Davis in an attempt to improve their working relationship. After investigating Davis’s behavior, Ball State found no basis to take disciplinary action, but formally warned Davis for her August 2007 comments. In response to investigations into McVicker’s behavior, Ball State skipped a verbal warning and issued McVicker a written warning on November 11, 2005. Additionally, the Assistant Director of the Office of Compliance met with McVicker to discuss her conduct.
Vance filed the action against Ball State in October 2006; however, the district court granted Ball State’s motion for summary judgment. The district court found that Ball State could not be liable for Davis’s actions as a supervisor under Title VII because Davis did not have the power to hire, fire, demote, promote, transfer, or disciple Vance, and the periodic authority to direct the work of other employees did not make Davis a supervisor. The district court also held that Ball State had properly addressed every complaint filed by Vance and that the actions of the university were reasonable to prevent future harassment. The Seventh Circuit affirmed the district court ruling, holding that Davis was not Vance’s superior because she lacked the ability to hire, fire, demote, promote, transfer, or discipline Vance. In addition, the Seventh Circuit found that even if Davis and McVickers had created a hostile work environment, Ball State was not liable because it promptly and thoroughly investigated all claims, taking disciplinary action when needed.
Discussion
Purpose of Title VII
Workplace harassment based on race, color, national origin, religion or sex is prohibited by Title VII. As the Supreme Court noted in Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998), the purpose of Title VII is not “to provide redress but to avoid harm.” Consequently, potential liability under Title VII increases employers’ incentives to monitor supervisors and create systems for which employees can file complaints. From a policy perspective, National Partnershipasserts that Title VII is less effective if it only applies to high-level supervisors and not to supervisors who control workers’ daily activities. Overall, if Vance wins, there will likely be an increased focus on immediate supervisors because directing daily work assignments increases the potential for and impact of abuse. If Ball State wins, there will still be an increased focus on immediate supervisors; however, the definition of control over daily work assignments will be more restricted.
Redefining “Supervisor”
As the Seventh Circuit noted, if a supervisor is responsible for creating an abusive workplace environment based upon harassment, then the employer is responsible for the supervisor’s acts under Title VII. Title VII does not define “supervisor,” and there is no clear authority distinguishing between co-workers and supervisors. Both Vance and Ball State assert that the Seventh Circuit definition of “supervisor” does not meet the realities of the workplace and is too restrictive; however, the parties disagree how supervisor should be defined and whether the new definition could include the facts of this case.
Submitting a brief in favor of neither party, the Federal Government observes that the definition of supervisor should mirror the definition provided by the Equal Employment Opportunity Commission (“EEOC”). The United States notes that the EEOC definition of a supervisor focuses on the power an individual may have over another and whether or not the individual is in the “supervisory chain of command.” As a result, the United States asserts, the EEOC definition of a supervisor also includes control over daily work activities.
Further, National Partnership argues that expanding employer liability to include direct supervisors will increase employer incentives to create better harassment policies, improve training, and improve monitoring. National Partnership asserts that supervisor harassment derives from the overall employment environment, and that harassment will not end without employers making structural changes. Thus, National Partnership argues that a more expansive definition of supervisor will increase employer accountability and decrease harassment.
Conversely, the United States Chamber of Commerce asserts that expanding employer liability to include direct supervisors, but not establishing a bright-line definition for supervisors, will leave employers without sufficient guidance and decrease incentives for prevention efforts. The Chamber of Commerce argues employers’ resources will be stretched too thin without knowing where to focus training and monitoring. Ultimately, the Chamber of Commerce asserts that expanding employer liability too far creates a catch-22 between overly broad, yet ineffective, and narrow, yet effective, preventative measures.
Vance advocates expanding the definition of supervisor either by finding the Seventh Circuit definition to be too narrow or by explicitly adopting the definition used by the U.S. Second Circuit Court of Appeals. According to Vance, the Second Circuit definition is much broader, and it could cover all individuals given authority by the employer over the employee. Conversely, Ball State advocates broadening the Seventh Circuit definition, but it argues that the definition should be based upon the workplace realities rather than titles. Factors germane to daily supervision include: actual control over daily work activities, the victim’s knowledge of control over their daily work activities, a lack of on-the-scene access to a higher ranking employee for the victim, and temporary control of daily work activities, which only creates liability if the harm occurs during the temporary period. Ball State’s limits on what would make someone a supervisor is more restrictive; however, Ball State argues that the limiting principles narrow the focus to individuals actually exercising supervisory authority.
Overall, it is very likely that this decision will expand the Seventh Circuit definition of “supervisor;” however, the Supreme Court will decide how broad the definition should be and whether or not there will be limiting principles that provide further guidance regarding how the definition may be limited.
Analysis
Among other things, Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to engage in discriminatory practices based on its employees’ race. 42 U.S.C. § 2000e–2(a)(1) Under Title VII, the employer may be liable for the improper actions of its employees; however, the standard that a court will apply to the employer depends on whether the employee was a supervisor of the victim or merely a co-worker. In Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, the Supreme Court held that the employer would automatically be liable for the employee’s conduct if the employee was a supervisor and took a tangible employment action. Tangible employment actions include hiring and firing an employee or changing an employee’s work assignments. On the other hand, the employer will not be liable for the conduct of an employee who was a co-worker of the victim unless the employer was negligent in learning of or responding to the inappropriate conduct.
The Seventh Circuit ruled that, in this context, a “supervisor” is restricted to employees with the power to hire, fire, promote, transfer, or discipline other employees. The Seventh Circuit noted that, unlike other circuits, it did not consider the authority over an employee’s daily work sufficient to make one a supervisor. The Seventh Circuit concluded that Vance did not demonstrate that Davis had the requisite control over Vance to qualify as a supervisor, so the court therefore considered Davis as Vance’s co-worker.
The parties agree largely on how a court should address a given case. Both Vance and Ball State assert that a “supervisor” under Title VII is not limited to those employees with the powers enumerated by the Seventh Circuit. Rather, the parties agree that one with the authority to oversee the work of others on a daily basis could count as a supervisor. In determining whether a given employee is a supervisor, the parties both stress that a court should look to the functioning work relationship. Additionally, both parties argue that the Court should adopt the approach used by the Second Circuit in determining whether an employee is a supervisor, which turns on whether an employee’s authority over the victim gave rise to and facilitated the improper treatment.
The Supreme Court’s Decisions in Ellerth and Faragher
In Ellerth and Faragher, the Supreme Court ruled that an employer would be liable for the harassment of an employee by “a supervisor with immediate (or successively higher) authority over the employee.” As noted by Vance, the Court’s ruling did not exclude lower-level figures that oversee an employee’s day-to-day work. Ball State agrees that this form of supervision fits well within the Court’s rule, provided the daily interaction gave rise to the harassment. Both parties highlight the possibility that the particularly close contact between employee and supervisor could provide the opportunity for greater abuse.
Additionally, the parties both point to guidelines generated by the EEOC. The EEOC’s guidelines specifically state that, for purposes of Title VII employer liability, one need not have the power to make employment decisions about the employee to be a supervisor. Rather, according to the EEOC definition, a supervisor could also be one with the power to “direct the employee’s daily work activities.” The United States notes that the EEOC is the federal agency in charge of enforcing Title VII so the Court should give some weight to its interpretation of the statute. Vance and Ball State agree and see the EEOC guidance as fitting within the Second Circuit’s restriction on liability to situations where the supervisory role enabled the improper treatment.
Principles of Agency Law
The Court has concluded that Title VII incorporated principles of agency law in its allocation of liability to employers for their employees’ conduct. Under standard conceptions of employer liability, an employer is liable for harms caused by an employee—the employer’s agent—provided the harm arose from the employee’s work for the employer. The employer will be vicariously liable for the employee’s conduct despite the fact that the employer may have acted properly. In this case, the parties assert that a less restrictive reading of supervisor for the purposes of Title VII would be more consistent with those principles. Although workplace harassment falls outside the scope of an employee’s work, the Supreme Court has held employers liable where the employee’s supervisory role enabled the harassment. Both parties acknowledge that the power over an employee’s daily work could enable harassment.
THE SUPREME COURT’S NEXT STEP
In its brief, Ball State goes on to argue that, even with a broader definition of supervisor under Title VII, Davis would not fall into that category. As a result, Ball State maintains that the Supreme Court, if it expands the definition, should simply apply this new standard to Davis rather than remand the case to a lower court. According to Ball State, Davis did not have control over Vance’s daily work; further, Vance did not definitively consider Davis to be her supervisor. Additionally, Ball State believes that application of a new standard by the Supreme Court would be helpful for the lower courts that will have to apply the standard in the future.
By contrast, Vance argues that the Supreme Court should simply reverse the Seventh Circuit’s decision and remand the case. According to Vance, the district court should engage in a new round of fact-finding in order to better apply any new standard that the Supreme Court announces. Vance notes that this is the Supreme Court’s usual practice, and the Court should not deviate from it here.
Conclusion
In this case, the Supreme Court will resolve a circuit split on whether one must have the power to hire, fire, demote, promote, transfer, or discipline the victim of racial discrimination to qualify as a supervisor for purposes of employer liability under Title VII. As an alternative to this closed list, the Court may decide that the daily oversight of the victim’s work is enough to make one a supervisor under the statute. Both parties agree that this functional role may give rise to the very abuses that Title VII sought to combat. In addressing the realities of the workplace and their relevance to the statute, the Court’s decision has the potential to expand employers’ liability for the unlawful conduct of their employees.
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Acknowledgments
- Farkimi & Associates: SCOTUS to Take on Harassment Issue (Sept. 29, 2012)