Legal Updates

Supreme Court Clarifies Definition Of “Supervisor” Under Title VII

The United States Supreme Court has resolved a disagreement among lower courts as to the definition of “supervisor” for purposes of harassment claims under Title VII of the Civil Rights Act of 1964 (“Title VII”).

In Vance v. Ball State University, the Court held that an employee qualifies as a supervisor – meaning that the employer may be held vicariously liable for his or her conduct – only if the employee has the authority to carry out “tangible employment actions” with regard to the victim of the alleged harassment.  In particular, the putative supervisor must be empowered 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.”

The restrictive definition adopted by the Court is favorable for employers, since it limits the circumstances under which an employer may be held liable for harassment by an employee.

Background Legal Principles

The term “supervisor” is not used in Title VII.  Rather, the Supreme Court has adopted the term as a means of identifying the class of employees whose actions may give rise to certain types of employer liability under the statute.

Specifically, in two decisions issued together in 1998, Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, the Court ruled that whether an employer may be held liable for an employee’s harassment turns substantially on whether the harasser is a “supervisor.”  If the harasser is a supervisor and the harassment results in an adverse “tangible employment action,” such as a demotion or termination, then the employer will be held strictly liable for the harassment.  If, on the other hand, there was no such “tangible employment action,” the employer can avoid liability by demonstrating that it exercised reasonable care to prevent and eliminate harassment and that the plaintiff unreasonably failed to take advantage of those preventive or remedial opportunities.  (This is commonly referred to as the Faragher-Ellerth affirmative defense.)

By contrast, where the harasser is not a supervisor, but is merely the victim’s co-worker, the legal standard under Faragher and Ellerth differs.  In such cases, the employer may be held liable for the co-worker’s harassment only if the employer acted negligently in failing to prevent the harassment from taking place.

As the Supreme Court did not define the term “supervisor” in its Faragher and Ellerth decisions, the federal courts of appeals adopted varying definitions of the term for purposes of Title VII.  For example, the First, Seventh and Eighth Circuits held that a Title VII supervisor must have the power to “hire, fire, demote, promote, transfer or discipline” another employee.  By contrast, the Second, Fourth and Ninth Circuits held that any employee who has authority to direct and oversee another employee’s day-to-day work qualifies as a supervisor for purposes of Title VII.

The Vance Case

The Vance litigation gave the Supreme Court an opportunity to resolve this split among the federal circuit courts.  The plaintiff in Vance, Maetta Vance, is an African-American woman who worked as a catering assistant at Ball State University.  Vance’s direct supervisor was Bill Kimes, general manager of the Banquet and Catering Department.

Vance first complained to the university in 2005 that two co-workers were harassing her.  Specifically, Vance alleged that Saundra Davis had threatened her and that Connie McVicker had directed racial epithets toward her.  The university investigated Vance’s complaints and ultimately gave McVicker a written warning.  Because the university was unable to determine what had transpired between Vance and Davis, it counseled both employees regarding their behavior.

Vance continued to complain of alleged harassment by McVicker and Davis throughout 2006 and 2007.  Eventually, Vance filed suit in federal court under Title VII against the university, Kimes, Davis and McVicker, claiming, in part, that the university was liable for the hostile environment allegedly created by Davis because Davis had authority to direct Vance’s work and thus qualified as a supervisor under Title VII.

Ruling on the university’s motion for summary judgment, the district court held that Davis did not qualify as Vance’s supervisor because she lacked the authority to “hire, fire, promote, transfer or discipline” Vance.  Thus, the court concluded, the university could not be held liable for Davis’s alleged harassment of Vance under the Faragher-Ellerth standard.  The district court further held that the university could not be held liable to Vance on a negligence theory because it had responded reasonably to the alleged incidents of harassment of which it was aware.

On appeal by Vance, the Seventh Circuit Court of Appeals affirmed the district court’s decision.  Vance then asked the Supreme Court to review the lower courts’ holding as to the supervisory issue, which the Court agreed to do.

Supreme Court’s Decision

Affirming the lower courts’ holding, the Supreme Court concluded that Davis was not Vance’s supervisor for purposes of Title VII.  The Court held that “the authority to take tangible employment actions is the defining characteristic of a supervisor,” and that Davis did not meet this standard.  Accordingly, the Court ruled, the university could not be held liable for Davis’s alleged harassment of Vance.

In adopting this test, the Court rejected the position of the Equal Employment Opportunity Commission (“EEOC”) that an individual’s mere “ability to exercise significant direction over another’s daily work” should be sufficient to confer supervisory status.  The Court characterized the EEOC’s position as “nebulous,” “vague,” and “a study in ambiguity.”

The Supreme Court explained that “an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible 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.”

In contrast to the EEOC’s “vague” definition of a supervisor, the Court characterized its definition as “easily workable.”  The Court added that its holding would facilitate resolution of many disputes by allowing the parties to determine at an early stage whether an alleged harasser was a supervisor for purposes of Title VII.

Recommendations For Employers

As a result of the Vance decision, we recommend that employers:

• Ensure that their written job descriptions and related documents are clear as to which employees have authority to take “tangible employment actions” and thereby qualify as supervisors for purposes of Title VII.  This will assist employers in taking maximum advantage of the Vance decision;
• Maintain their efforts to prevent workplace harassment through training and other preventive programs; and
• Promptly investigate and remedy, as appropriate, all complaints of harassment.  In this regard, even after the Vance decision, an employer can be held liable for a hostile work environment created by a non-supervisory employee’s harassment if the employer knew or should have known about the harassment and failed to take prompt remedial action.

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If you have questions about the Vance decision or would like guidance in connection with any harassment or discrimination issue, please don’t hesitate to contact us.