Three attorneys in oral argument before the U.S. Supreme Court Nov. 26 all seemingly agreed that an employee who directs other workers' day-to-day activities may be a “supervisor” under Title VII of the 1964 Civil Rights Act, even if he or she lacks authority to hire, fire, demote, promote, transfer, or discipline workers (Vance v. Ball State Univ., U.S., No. 11-556, oral argument 11/22/12).
Daniel R. Ortiz of the University of Virginia School of Law Supreme Court Litigation Clinic in Charlottesville, Va., argued that the U.S. Court of Appeals for the Seventh Circuit applied an incorrect standard for defining “supervisor” ( 646 F.3d 461, 112 FEP Cases 582 (7th Cir. 2011); 29 HRR 633, 6/13/11).
The Seventh Circuit affirmed a ruling in favor of Ball State University and held that black catering assistant Maetta Vance failed to establish a basis for employer liability based on either co-worker or supervisor harassment. Among other things, the appeals court found no material factual dispute about the supervisory status of one of Vance's alleged harassers, Saundra Davis, given the lack of evidence that Davis had the power to hire, fire, demote, promote, transfer, or discipline Vance.
Ortiz, who represented Vance during oral argument, contended that the Seventh Circuit's definition of “supervisor,” which also is followed by the First and Eighth circuits, violates Supreme Court precedent 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)) and “produces truly perverse results.”
Under the Seventh Circuit's rule, Ortiz said, an employee who directs another worker's day-to-day tasks and essentially manages that worker's “whole job period” would not be considered a supervisor. Meanwhile, a human resources official whom an employee never sees but who does have the authority to affect the employee's formal employment status would be considered a supervisor, Ortiz said.
U.S. Deputy Solicitor General Sri Srinivasan, representing the federal government, agreed that the Seventh Circuit's approach has “some serious flaws,” and advocated in favor of the viewpoint of the Equal Employment Opportunity Commission, as well as the Second, Fourth, and Ninth circuits, that a Title VII “supervisor” includes an employee who controls another worker's daily work activities.
Seemingly in agreement with Ortiz and Srinivasan, Gregory G. Garre of Latham & Watkins in Washington, D.C., who represented Ball State, also argued that the high court's precedent should compel the justices to reject the Seventh Circuit's definition, and to provide guidance on “on how to apply the EEOC and the Second Circuit standard.”
But he nevertheless urged the justices to affirm the ruling for Ball State, asserting that the factual record shows that Davis would not qualify as Vance's supervisor even under a broader standard.
According to the Seventh Circuit's June 2011 ruling, 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, alleging racial harassment, among other claims, but the U.S. District Court for the Southern District of Indiana ruled for the university.
The Seventh Circuit affirmed and held that Vance failed to establish a basis for employer liability.
Under Faragher and Ellerth, an employer will be held “strictly liable” for a supervisor's harassment of an employee that leads to a tangible adverse employment action. However, in the absence of an adverse action, an employer can affirmatively defend against liability by showing it exercised reasonable care to prevent and correct the alleged harassing behavior and the employee unreasonably failed to utilize the employer's corrective processes.
The appeals 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.
In addition, 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 that Davis had the power to hire, fire, demote, promote, transfer, or discipline employees.
Vance had argued that Davis was a supervisor because she told Vance what to do and did not clock in as other hourly employees did. But the appeals court said it has “not joined other circuits in holding that the authority to direct an employee's daily activities establishes supervisory status under Title VII.”
The Supreme Court in February invited the solicitor general to file a brief expressing the government's view on the definition of “supervisor”(30 HRR 201, 2/27/12) and granted review in June (30 HRR 708, 7/2/12).
In arguing for the broader supervisor standard supported by EEOC guidance and three courts of appeal, Ortiz said a harassing employee “whose employer-conferred authority over their victims enables or materially augments the harassment should count as a supervisor.”
Ortiz asserted that this standard would not impose “automatic liability” on employers because employees still must show “actionable harassment” and employers can shield themselves from liability under the Ellerth/Faragher affirmative defense.
He further urged the justices to reverse the Seventh Circuit so that the case can be remanded to the district court to be looked at under the correct legal standard for defining a Title VII supervisor.
Srinivasan emphasized that the Seventh Circuit's narrow interpretation of supervisor has “serious flaws.” For example, he said the Supreme Court in Faragher found that a male lifeguard with no authority to hire or fire a female co-worker was still her supervisor because he threatened to make her clean toilets for a year if she did not date him.
The Seventh Circuit's rule, he said, “wouldn't cover the supervisor's conduct that was at issue in Faragher itself.”
Chief Justice John Roberts presented a hypothetical to Ortiz in which an employer authorizes a senior employee to select the music played at a worksite. If the senior employee threatens to play country music at work all day if another worker refuses to go on a date, Roberts asked, would he or she be considered a supervisor under the standard advocated by Ortiz?
Ortiz replied that such a determination would have to be made on a case-by-case basis.
Roberts said he “would have thought the benefit of the Seventh Circuit's test was that you don't have to go through those case-by-case basis” determinations.
The chief justice repeated the hypothetical to Srinivasan, who answered that the senior employee would not be a Title VII supervisor because EEOC guidance states that supervisory status will not apply where an employee's authority “is exercised over a limited field, a limited number of tasks or assignments.”
Roberts said the scope of an employee's authority does not “have to do with the number of tasks,” to which Srinivasan agreed and added that “there are going to be cases that raise issues at the margins.”
Justice Samuel Alito asked Ortiz to clarify what he meant by authority that “materially augments harassment.” Ortiz said the authority must sufficiently “enable the harasser to instill … fear in the victim,” or allow the harasser to “control the physical location of the victim.”
Alito observed that certain assignments could be “extremely unpleasant,” but “there are also a lot of situations, like the chief justice's example, where it's really very unclear.” He added that he does not know “how courts are going to … grapple with that.”
Justice Stephen Breyer asked Srinivasan if EEOC or courts have encountered problems such as Roberts's hypothetical about the country music and whether such situations constitute authority over daily work activities.
Srinivasan said EEOC attorneys have told him they have not encountered such issues.
“The EEOC lawyers think the EEOC plan is working just fine,” quipped Roberts.
The chief justice later asked Srinivasan where the court should draw the line in determining which employees are supervisors under Title VII.
“Control over daily work activities is where we would draw the line,” Srinivasan answered, adding that the justices could elaborate in their opinion on EEOC's guidance.
Justice Sonia Sotomayor asked Ortiz whether it would be a “crazy rule” if the justices adopted the broader supervisor standard, but then required an employee to complain about harassment in light of “the difference between formal supervisors who take tangible work activities and informal supervisors” whom the employer would have less control over and whose activities the employer would have less knowledge about.
Ortiz said such a rule “doesn't actually map well on the structure of the affirmative defenses laid out in Ellerth and Faragher,” which place the burden of proving the defenses on the employer.
Justice Anthony Kennedy later suggested that if the Seventh Circuit's more restrictive standard is adopted, it could be coupled with “an increased duty of care on the part of the employer to take necessary steps to prevent forbidden harassment.”
Ortiz said doing so would dispel “any kind of certainty and predictability in the rule, because the duty of care of course would be determined by a jury only after hearing a particular case.”
Arguing for Ball State, Garre also asserted that the term “supervisor” should not be limited to employees with the authority to hire, fire, demote, promote, transfer, or discipline other workers.
“We don't think the Seventh Circuit test is the complete answer to the question of who may qualify as a supervisor,” he said, agreeing that it conflicts with Faragher and Ellerth.
Based on the factual record in this case, Garre said, the high court should nevertheless affirm the ruling for Ball State because no triable disputes exist about whether Davis controlled Vance's daily work activities.
Justice Antonin Scalia emphasized that the high court did not agree to review the case to decide factual questions.
“We took it principally to decide whether the Seventh Circuit rule was right or not,” he told Garre. “And you don't even defend that. So there is nobody here defending the Seventh Circuit.”
Garre said several amici, including the U.S. Chamber of Commerce, defended the Seventh Circuit, but Scalia responded: “They are not talking to us here, are they?”
Roberts asked Garre, as the representative of an employer, if he had “no difficulty” in going through a “case-by-case” analysis whenever an issue arises about whether an employee is a supervisor based on their authority, and deciding “on that basis whether or not you should compensate the victim, or whether or not you should go to court.”
Garre replied that he would have difficulty, but if he is “wrong about what this Court's precedents compel, then this Court should adopt the Seventh Circuit principle.” However, if the court adopts a broader supervisory standard, the justices should “establish meaningful limits,” he said.
For example, Garre pointed out that EEOC's guidance states that “limited or marginal … authority to lead or oversee by virtue of a paper title, its grade, or seniority is not sufficient” to establish supervisory status.
“We think the proper way to resolve this case is to adopt something like the EEOC rule or the Second Circuit rule, but to make clear there are limits,” he said. “And the best way to make clear that there are limits is to make clear that on the record in this case Ms. Davis did not qualify as a supervisor.”
Several justices, including Justices Ruth Bader Ginsburg, Elena Kagan, Breyer, and Sotomayor, said they could not find evidence in the record that Davis was Vance's supervisor under the broader standard.
“I would be tempted to actually just decide the [case] rather than to remand it,” Kagan said.
By Jay-Anne B. Casuga
Text of the oral argument transcript is available at http://op.bna.com/dlrcases.nsf/r?Open=jaca-92evkw.