U.S. Supreme Court to Clarify Who Is a Supervisor Under Title VII

Volume 11, Issue 9
December 5, 2012

On November 26, 2012, the United States Supreme Court heard oral argument in Vance v. Ball State, a case in which the Court will have the opportunity to address the issue of who is a "supervisor" under Title VII of the Civil Rights Act of 1964.  The scope of the supervisor definition under Title VII is a very important for employers given the more stringent standard used to determine employer liability for harassment by a supervisor as compared to the negligence standard used where the harassment is by a non-supervisory employee.

In 1998, the Supreme Court held that an employer is vicariously liable for severe or pervasive workplace harassment committed by a supervisor who has immediate or successively higher authority over the alleged victim if the harassment results in a significant change in the victim's employment status, such as discharge, demotion, or undesirable reassignment (tangible employment action).  The only exception to such vicarious employer liability is where no tangible employment action is taken and the employer establishes an affirmative defense to liability by proving it exercised reasonable care to prevent and correct promptly any harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.  However, in situations where severe or pervasive workplace harassment is committed by a non-supervisory employee, an employer is only liable where it was negligent because it knew or should have known about such harassment and failed to take prompt remedial action to stop it.  See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

The Ball State case involves a catering assistant, Maetta Vance, who alleges she was subjected to racial harassment by several individuals who worked with her in Ball State University's Catering Department, including a catering specialist, Saundra Davis.  Very little evidence was provided by Ms. Vance to establish Ms. Davis' alleged supervisor status other than Ms. Davis' testimony that Ms. Davis periodically directed other employees' work and did not clock-in like other hourly employees.  Both the district court and the Seventh Circuit Court determined that while Ms. Davis had some authority to direct and oversee Ms. Vance's daily work, she did not have the power to directly affect the terms and conditions of Ms. Vance's employment because she lacked authority to hire, fire, demote, promote, transfer, or discipline.  Thus, the more stringent standard used to determine employer liability for harassment by a supervisor was not appropriate.

The various federal Circuit Courts of Appeal have reached differing conclusions as to who is a supervisor under Title VII.  The First, Seventh, and Eighth Circuit Courts have found that the definition of supervisor is limited to those individuals who have the power to "hire, fire, demote, promote, transfer, or discipline" their alleged victim.  However, the Second, Fourth, and Ninth Circuit Courts have adopted a more expansive definition, largely taken from Equal Employment Opportunity Commission guidance, that also includes individuals who have the authority to direct daily work activities, such as making working assignments and schedules or recommending employment actions.

Various advocacy groups have weighed in on the issues implicated in the Ball State case with the National Employment Lawyers Association, AARP, the National Partnership for Women & Families, and the Society for Human Resources Management (SHRM) filing amicus briefs urging the Supreme Court to adopt various interpretations of the supervisor definition under Title VII.  Of particular interest to employers is SHRM's brief focusing on the lack of an agency relationship between the employer and the alleged harasser and the lack of tangible employment actions in the case.  Additionally, both legal observers and advocacy groups are intrigued by the unique positions of the parties in the case and how they may affect the Court's ruling.  The employer, Ball State University, agrees that the Seventh Circuit Court's "hiring and firing" definition of a supervisor is too restrictive, but argues that the alternative definition advanced by Ms. Vance is too broad.

The Supreme Court is expected to issue its decision sometime next year before the end of its current judicial term on June 30, 2013.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.