WHO’S THE BOSS?

The Supreme Court’s misstep in Vance v. Ball State University

 What comes to mind when you think of the term “supervisor?”  Is it simply the person at your workplace who can hire, fire, or promote you?  Or, would you consider a supervisor to be the person in charge of your daily routine – assigning duties, creating schedules, overseeing the work you do – regardless of their hiring or firing capabilities?

 

If that second definition is what you envisioned, then you would likely disagree with the Supreme Court’s recent decision in Vance v. Ball State University.  In Vance, the Supreme Court held that, for the purposes of employer discrimination and harassment suits, a “supervisor” is defined only as an employee who has the power to take “tangible employment actions” against other employees.

 

So what does that mean, and why is it important?

To begin with, the Court’s holding affects the level of an employer’s liability, or responsibility, for its employees that have engaged in discriminatory conduct prohibited by Title VII of the 1964 Civil Rights Act.  Title VII protects employees from discrimination or harassment by employers based on race, color, sex, religion, or national origin, creating a federal cause of action that allows awards for damages to victims of such conduct.

 

In 1998 the Supreme Court handed down a pair of opinions, Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton, holding that an employer is automatically liable for a supervisor’s discrimination or harassment against other employees. However, if an employee is being harassed merely by other co-workers, the employer is only liable if it was negligent in permitting the harassment to occur.  The difference here is important.  Proving that an employer was negligent in correcting a co-worker’s discriminatory actions places a heavier burden on a victim trying to recover damages.  To establish negligence, a victim would have to prove: (1) that the employer knew, or reasonably should have known about the harassment/discrimination; and (2) that the employer failed to take remedial action.  On the other hand, if the harassment comes from  a supervisor, then the employer is liable to the victim regardless if it was negligent or if it even knew of the harassment at all.

 

Both the Faragher and Ellerth decisions were huge steps forward for employee rights against discrimination and harassment.  However, the Court didn’t include in those decisions a definition of what type of employee actually qualifies as a supervisor.  That’s where the Vance decision comes into play.

 

Justice Alito, writing for a 5-4 majority, states in Vance that in order for an employee to qualify as a supervisor under Title VII, he or she must have been given the authority by their employer to take “tangible employment actions” against other employees.  In other words, a supervisor is someone who can hire, fire, promote, demote, transfer, or discipline other employees, and in particular, the employee bringing suit for discrimination.

 

In the Court’s eyes, it doesn’t matter if another employee has the authority to assign you tasks, schedule when you work, or oversee your daily activities — unless that person can fire, discipline or transfer you, he or she is not a supervisor.

 

This definition marks a big departure from the way Title VII has been enforced over the past fourteen years.  Although some Federal Circuit Courts have applied this definition in the past, the Equal Employment Opportunity Commission (the Federal agency responsible for enforcing the laws against workplace discrimination) has routinely used the much broader definition of supervisor (“one who is authorized to direct an employee’s daily work activities”) in pursuing discrimination cases since 1999.

 

How this decision affects you

Justice Alito’s narrow definition of supervisor doesn’t take into account the structure of the modern workplace.  In today’s workplace environment, there are many positions out there that involve the authority to direct employees’ activities without the formal ability to fire or discipline those employees.

 

Think about how that type of authority could still be used to harass or discriminate against an individual.  Think also how a victim of discrimination might be reluctant to make a complaint against a superior with the power to control the type, quality, and amount of work the victim is assigned.  The mere fact that this superior isn’t able to formally fire the victim doesn’t take away from the risks she might perceive to surround coming forward with a complaint.  As Justice Ginsberg points out in her dissent of Vance, this type of situation is exactly why the Court decided in Ellerth and Faragher to make employers strictly liable for supervisors’ discriminatory conduct in the first place.

 

Congress intended for Title VII to give broad protection to employees against workplace discrimination, but the Vance decision is an unfortunate step back from that goal.  It ignores the reasoning behind previous Supreme Court enlargements of Title VII protection, and the spirit behind which the bill was enacted.  While it is still very possible to bring successful discrimination and harassment claims under Title VII, the Court’s short-sighted definition of “supervisor” offers employers an easier way to avoid liability for the discriminating conduct of employees in positions of authority.

 

Although the Vance decision presents new issues for discrimination claims, Abney & McCarty are thoroughly prepared to handle this new development in employment discrimination law.  If you feel that you have been the victim of discrimination or harassment at your job, we can help.  Contact us today to learn more about your options.