Court to Review Definition of ‘Supervisor' Under Title VII

With an emphasis on practical strategies to improve productivity and performance, and limit potential liabilities, Bulletin to Management™ concisely analyzes new developments in employment and human resources management.

By Jay-Anne B. Casuga  

Despite the solicitor general's stance that review should be denied, the U.S. Supreme Court agreed June 25 to examine a federal appeals court ruling dealing with the question of whether a “supervisor” under Title VII of the 1964 Civil Rights Act can include an employee who oversees and directs other workers' daily tasks, but lacks authority over their formal employment status (Vance v. Ball State Univ., U.S., No. 11-556, cert. granted 6/25/12).

In February, the justices invited the solicitor general to file an amicus brief regarding a case in which the U.S. Court of Appeals for the Seventh Circuit affirmed a ruling for Ball State University on the Title VII claim of Maetta Vance, a black catering assistant who alleged that white co-workers and supervisors racially harassed her.

The Seventh Circuit held, among other things, that Vance failed to establish a basis for employer liability based on purported harassment by either a co-worker or a supervisor (62 BTM 190, 6/14/11).

Vance had contended that one of the alleged harassers, Saundra Davis, actually was a supervisor and not a co-worker because Davis directed her work and did not “clock in” as other hourly employees did. The Seventh Circuit, however, found a lack of evidence that Davis had the power to hire, fire, demote, promote, transfer, or discipline Vance.

In its amicus brief to the high court, the United States acknowledged a circuit split regarding the definition of “supervisor” for Title VII purposes. Some appeals courts, the solicitor general said, have adopted the Seventh Circuit's view that a supervisor is an individual who has authority to make tangible actions that affect a worker's formal employment status.

Meanwhile, several other circuits, along with the Equal Employment Opportunity Commission, have concluded that an employee who lacks such authority nonetheless may be considered a “supervisor” if he or she directs other employees' day-to-day work activities.

The United States also took the position that the Seventh Circuit's interpretation of the term “supervisor” is inconsistent with the Supreme Court's rulings in Faragher v. Boca Raton ( 524 U.S. 775, 77 FEP Cases 14 (1998)) and Burlington Industries Inc. v. Ellerth ( 524 U.S. 742, 77 FEP Cases 1 (1998)). Additionally, the federal government said the Seventh Circuit's ruling conflicted with EEOC guidance and ignored the “practical realities of the workplace.”

Nevertheless, the solicitor general argued that the Supreme Court should deny review because Vance's case would be an “unsuitable vehicle” for resolving disagreement over the definition of “supervisor.” As did the university in its brief opposing high court review, the solicitor general said Davis would not be considered a “supervisor” as defined by any circuit court or EEOC.

No Employer Liability

According to the Seventh Circuit, Vance alleged that Davis in 2001 slapped the back of her head during a work-related discussion, and in 2005 told Vance she would “do it again.” Vance also claimed that another white co-worker and two white supervisors subjected her to harassment.

Vance filed oral and written complaints over several years about the alleged harassment. In response, Ball State conducted investigations and took disciplinary actions when Vance's allegations could be corroborated.

Vance sued Ball State under Title VII in October 2006. The U.S. District Court for the Southern District of Indiana ruled in favor of the university.

The Seventh Circuit affirmed and held that Vance failed to establish a basis for employer liability. Although an employer is strictly liable for supervisor harassment, the court ruled that Vance did not demonstrate that her supervisors' conduct was motivated by race and that her allegations did not sufficiently establish a hostile work environment.

Additionally, the Seventh Circuit said Vance failed to show Ball State could be held liable for purported co-worker harassment because the university took reasonable corrective action in response to Vance's multiple complaints. The appellate court considered Davis to be Vance's co-worker and not a supervisor because it found no evidence showing Davis had the power to hire, fire, demote, promote, transfer, or discipline employees.

Briefs for, Against Review

In her October 2011 petition for Supreme Court review, Vance argued that the justices must resolve a “sharp” and “widespread” circuit split over the definition of “supervisor” so that courts can properly determine when to impose vicarious liability on employers in Title VII harassment cases.

She said the Seventh Circuit's ruling would produce “perverse consequences” by allowing large employers to avoid supervisor harassment liability under Title VII by vesting formal employment authority in a “few individuals at central headquarters.”

Opposing review, Ball State contended that Vance's case is an “unattractive vehicle to address” the different standards for determining when an employee is a supervisor for Title VII purposes.

Since Vance presented no evidence that Davis had authority over her daily activities, Vance's case “does not actually conflict with any other decision” or EEOC guidance, the university said. It added that resolution of the question presented would not actually make a difference to the outcome of Vance's case.

By Jay-Anne B. Casuga