VANCE v. BALL STATE: SUPREME COURT TIGHTENS DEFINITION OF SUPERVISOR UNDER TITLE VII
Some time, decades from now, employers may look back on June 24, 2013, as somewhat of a watershed moment in the world of employment law.
On the same day that the United States Supreme Court made it harder for employees to succeed with retaliation claims under Title VII of the Civil Rights Act of 1964 in University of Texas Southwestern Medical Center v. Nassar – a case the Employment Essentials blog team recently recounted here – the Court also made it harder in a separate case for employees to impose sexual harassment liability on employers for the actions of their supervisors unless those supervisors are authorized to take tangible employment actions against the employee.
In Vance v. Ball State University, the employee, Maetta Vance, sued her employer, Ball State University, in Indiana federal district court claiming that someone alleged to be her supervisor, Saundra Davis, subjected her to a racially hostile working environment in violation of Title VII. The district court disagreed with Ms. Vance and dismissed her claim. When Vance appealed, she didn’t have any better luck – the Seventh Circuit Court of Appeals affirmed the District Court ruling. Undeterred, Vance asked the United States Supreme Court to hear a further appeal. They agreed to take the case, but that just ended up being strike 3 for her.
In affirming the Seventh Circuit’s decision, our nation’s highest Court relied heavily on two of their prior opinions from 15 years ago, known in employment circles as the Ellerth and Faragher decisions. In those cases, the Supreme Court previously established the standard of employer liability for harassment under Title VII, depending on the status of the harasser. If the harasser was simply a co-worker of the victim-employee, the employer would be liable only if it knew or should have known of the harassment and was negligent in addressing the conduct.
If, on the other hand, the harasser was a supervisor, the employer would face strict liability if the harassment resulted in a tangible employment action. If the harassing conduct did not result in a tangible employment action, the employer would still face liability but not if the employer was able to prove (1) that it exercised reasonable care to prevent and correct any harassing behavior, and (2) that the victim-employee unreasonably failed to take advantage of preventive or corrective opportunities which the employer offered.
Ultimately, the Supreme Court in Vance held that an employee is a “supervisor” under this standard of imposing liability if he or she can take tangible employment actions – in other words, if the supervisor had the power to hire, fire, demote, promote, transfer, discipline, reassign with significantly different responsibilities, or make a decision which causes a significant change in benefits. In reaching that conclusion, the Court felt it was important to try and come up with a relatively concrete definition of “supervisor” because it recognized that there is some gray in this area – citing as an example the fact that “even the traffic director tells the president of the company where to park his car.”
One notable aspect of the Vance opinion is that the Court – like in the Nassar case – again rejected the position of the Equal Employment Opportunity Commission (“EEOC”). One year after Ellerth and Faragher had been decided, the Commission issued an Enforcement Guidance on the definition of a supervisor under those cases. In that Guidance, the EEOC stated that, in order to be a “supervisor,” the employee must wield authority “of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment.”. Unimpressed with that wisdom, the Supreme Court characterized the EEOC’s definition as a “study in ambiguity” and declined to follow it.
In choosing to decide Vance, the Court hoped to resolve a split among some of the lower federal appellate courts on this issue. For example, contrary to the standard relied upon by the Seventh Circuit in deciding Vance – which required a supervisor to be able to hire, fire, discipline, and the like – the Fourth Circuit, which includes West Virginia, had previously tied the definition of a supervisor to a more general ability to exercise significant direction over day-to-day work. Going forward after Vance, the Fourth Circuit’s prior interpretation of Title VII on this point can fairly be considered in question.
While that takeaway is particularly important for employers in West Virginia and elsewhere in the Fourth Circuit, there are other things employers nationwide should take from Vance. There are too many points to mention all of them in this forum, but perhaps the most important is the reminder that employers need to continue to take harassment claims in the workplace very seriously – even those where an allegation is made towards someone who may not be considered a “supervisor.” There remains a great deal of room for creative employee attorneys to argue that the employer was negligent – and therefore responsible – for permitting such harassment by co-workers. The Supreme Court in Vance even mentioned that the degree of authority yielded by a harasser who isn’t a supervisor is an important factor in determining whether the employer was negligent in that situation.
In addition, it’s worth bearing in mind that Vance was decided under Title VII, and of course, not every retaliation suit is brought under federal law. There are various equal employment opportunity laws which prohibit retaliation in just about every state, and those states are permitted to – and often do – interpret their similar laws in ways which provide greater protection to employees. Therefore, while fairly persuasive, the application of the more employer-friendly standard of the term “supervisor” set forth by Vance isn’t automatic or a guarantee in a particular state jurisdiction.
In the bigger picture, Vance reminds us that employers who don’t provide a mechanism for raising complaints of harassment are asking for trouble. Have a complaint procedure in place, and be sure all of your employees know about it and understand how to bring a complaint forward. Once a complaint is raised, respond to it promptly and thoroughly, and document all of your efforts. Finally, take things a step further and don’t just wait for complaints to be brought to your attention. Be proactive. Monitor your workplace. Train your managers and others on how to spot harassment and how to respond to it.
Employment cases like Vance which reach the Supreme Court are always useful for the specific guidance that comes from our nation’s highest court, but they are as or even more valuable for the opportunity they provide to remind employers of the basic fundamentals of trying to avoid these types of claims – fundamentals which still trip up many of them, but if managed well, can avoid the need to wonder or not whether Vance applies in the first place.