On June 24, 2013, affirming a decision by the 7th Circuit Court of Appeals, the Supreme Court of the United States held in a 5-4 decision that “an employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.” Vance v. Ball State University, No. 11-556. The Court provided a definition and test for a supervisor that will fit in with the Faragher and Ellerth analysis in employment law matters. Faragher v. Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). The Faragher and Ellerth decisions provide a dichotomy between employer liability for co-worker harassment versus employer liability for supervisor harassment. If the hostile workplace harassment is at the hands of merely a co-worker, an employer is liable under Title VII if the employer was negligent in controlling the workplace conditions. Employers are strictly and vicariously liable for workplace harassment committed by supervisors if there has been some sort of tangible employment action levied by the supervisor on the employee. On the other hand, if no tangible employment action has occurred at the hands of a supervisor, the employer is afforded the “Faragher – Ellerth” affirmative defense that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided, and will only be liable if the employer fails to establish the affirmative defense. The Vance v. Ball State University decision, limits the scope of Title VII “supervisor” liability to only those employees who have the authority to hire, fire, demote, promote, transfer, or discipline.
Plaintiff/Petitioner, Maetta Vance (“Vance”), an African American, worked for Defendant/Respondent, Ball State University (“Ball State”) in the University Banquet and Catering division of Dining Services since 1989. Throughout her employment, Vance made numerous complaints regarding racial discrimination and retaliation. At issue in the case were a series of complaints and EEOC Charges she filed in connection with alleged racial harassment and discrimination at the hands of her alleged supervisor, Saundra Davis (“Davis”), a Caucasian woman. In late 2005 and early 2006, Vance filed several internal complaints and EEOC Charges regarding Davis, which included complaints that Davis gave her a hard time at work, glared at her, blocked her access to an elevator with a food cart and smiled, and slammed pots and pans. Ball State attempted to address these alleged problems; however, Vance filed this lawsuit in 2006, alleging Davis was her supervisor and that Ball State was strictly liable for a racially hostile work environment. The United States District Court for the Southern District of Indiana granted Ball State’s summary judgment motion, ruling Ball State could not be vicariously liable since Davis was not Vance’s supervisor, and plaintiff could not show that Ball State had been negligent in its response to Vance’s complaints. Vance appealed the decision to the 7th Circuit, which affirmed the decision of the lower court.
Supreme Court Decision
The Supreme Court granted certiorari to resolve the conflict between the Circuits regarding whether an employee was a “supervisor” thus creating vicarious liability for hostile work environments under Title VII. Some circuits, including the 7th Circuit, provided that an employee is only a supervisor if he or she was able to hire, fire, demote, promote, transfer, or discipline the victim, while other circuits subscribed to the EEOC’s view that an employee was a supervisor if he or she is able to exercise significant discretion of another’s daily work. The Court held “that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment 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.'” This holding essentially narrows the EEOC’s Enforcement Guidance, to a specific and limited group of employees who are supervisors, rather than merely co-workers.
Employer Best Practices
- Review the job descriptions of employees to determine which employees have the authority to take tangible employment actions against other employees. We would also suggest making sure that the job description matches the employee’s actual duties so as to lessen the likelihood of questions of fact regarding whether an individual had the authority to make tangible employment actions.
- Make sure the company’s employment handbook is up to date with respect to all anti-discrimination and harassment policies.
- Properly train employees regarding the company’s anti-discrimination and harassment policies, and make sure all supervisors have been trained as well. Hoeppner Wagner & Evans LLP provides such training to our employment clients and can tailor our presentation to fit your company’s needs.
If you have any questions about Title VII, employment handbooks, workplace training, or any other employment law matter, contact your Hoeppner Wagner & Evans LLP relationship attorney.