Justices Rule 5-4 That Title VII ‘Supervisors' Must Have Power to Take Tangible Actions

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By Jay-Anne B. Casuga  

 

A “supervisor” for vicarious liability purposes under Title VII of the 1964 Civil Rights Act is an employee authorized by an employer to take tangible employment actions against another worker, the U.S. Supreme Court held in a 5-4 ruling June 24 (Vance v. Ball State Univ., U.S., No. 11-556, 06/24/13).

Writing for the majority, Justice Samuel Alito found that a Title VII “supervisor” must have the power to make a “significant change” in another worker's employment status, such as through hiring, firing, failing to promote, reassigning with “significantly different responsibilities,” or causing a “significant change in benefits.”

In so ruling, the majority affirmed a June 2011 ruling from the U.S. Court of Appeals for the Seventh Circuit in favor of Ball State University on the Title VII racial harassment claim of Maetta Vance, a black catering assistant ( 646 F.3d 461, 112 FEP Cases 582 (7th Cir. 2011); 49 GERR 837, 6/28/11). The Seventh Circuit had decided, among other things, that one of Vance's co-workers was not Vance's supervisor because she lacked the power to hire, fire, demote, promote, transfer, or discipline other workers.

Alito ruled that the Seventh Circuit's interpretation of “supervisor” is “implicit” in the framework the high court adopted 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).

Furthermore, Alito rejected the broader definition of “supervisor,” adopted by the Equal Employment Opportunity Commission and other appeals courts, that includes employees who lack the authority to make tangible employment actions, but direct other workers' day-to-day activities.

Alito called EEOC's definition a “study in ambiguity” that would make litigation “far more complex and difficult,” in comparison to the narrower interpretation, which he said can “be readily applied” such that an alleged harasser's supervisor status can be resolved as a matter of law before trial.

Chief Justice John Roberts and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas joined in the majority opinion.

Thomas also filed a concurring opinion in which he maintained that Faragher and Ellerth were wrongly decided. However, he said he joined with the majority because “it provides the narrowest and most workable rule for when an employer may be held vicariously liable for an employee's harassment.”

Justice Ruth Bader Ginsburg dissented, joined by Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.

Ginsburg said she would follow EEOC's interpretation of “supervisor,” and that the majority's decision “diminishes the force of Faragher and Ellerth, ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation's workplaces.”

EEOC Says Ruling Has 'Serious Consequences.'

EEOC General Counsel P. David Lopez told BNA June 24 that the commission is “disappointed” that the Supreme Court majority decided to limit anti-discrimination protections for workers in Vance and in University of Texas Southwest Medical Center v. Nassar (see related story).

“What may appear to some as decisions involving technical legal issues will have serious consequences for workers to be free from workplace harassment,” Lopez said. “We are also disappointed by the Supreme Court's failure to defer to long-standing EEOC interpretations of the law.”


 

“[T]here is no hint in either Ellerth or Faragher that the Court contemplated anything other than a unitary category of supervisors, namely, those possessing the authority to effect a tangible change in a victim's terms or conditions of employment,” Justice Alito wrote for the majority.

 

 

 


Judith L. Lichtman, senior adviser to the National Partnership for Women & Families, which filed an amicus brief in support of Vance in the case, called the majority's decision “deeply troubling” because it “will make it harder for victims of unlawful and insidious supervisor harassment to hold their employers accountable.”

“By failing to uphold a common sense definition of the term 'supervisor' and ignoring precedent, the Court demonstrated callous disregard for victims of harassment,” Lichtman said in a June 24 statement. “This ruling will have grave consequences for them, and it will set back the civil rights on which we all depend.”

Prof. Daniel Ortiz of the University of Virginia School of Law's Supreme Court Litigation Clinic, who represented Vance, also expressed his disappointment in the ruling.

“We think the rule the court adopted is fairly formulistic and doesn't correspond to the realities of the workplace,” Ortiz told BNA June 24. He added that he does not believe the court's definition of supervisor has “the advantages of clarity and administrability” that the majority believes it will have.

In the “long game,” he said he remains hopeful that Congress will “take another look” at defining supervisor under Title VII, and perhaps consider overturning the decision.

On a related note, Rep. George Miller (D-Calif.), the senior Democratic member of the House Education and the Workforce Committee, said in a June 24 statement that he agreed with Ginsburg's dissent that the majority's ruling in Vance and Nassar “stand in stark contrast to the intent of Congress and need to be corrected as soon as possible.”

“I will work with my colleagues in the House and Senate to move legislation that will overturn these ill-conceived decisions,” he said.

Attorney: Ruling Is 'Victory' for Employers, Employees

Camille A. Olson, a management attorney with Seyfarth Shaw in Chicago, told BNA June 24 that the majority's ruling “clearly is a victory for employers,” and added that she would argue that it also is a victory for employees.

“At least we now have certainty” regarding the scope of the term supervisor, which had been left undefined by the Supreme Court, she said.

Olson emphasized that the majority's definition does not leave employees without a remedy for harassment by co-workers who direct their daily activities, but lack the power to make tangible employment actions.

“They still do have the right to remedy that situation,” she said. “If the employer is negligent, they still can have a cause of action against the employer.”

Olson acknowledged that the ruling leaves some “issues of uncertainty,” as described in Ginsburg's dissent, regarding what would constitute a tangible employment action such that an employee falls within the majority's definition of supervisor.

“On the edges, there are some issues that will have to be worked out,” she said. “But that is true of any rule.”

Rae T. Vann, general counsel of the Equal Employment Advisory Council in Washington, D.C., told BNA that the Supreme Court had to “draw brighter lines” than those suggested by Vance and EEOC for determining who is a supervisor and who is not. A broad rule like that suggested by EEOC “would have created havoc” in the workplace and during litigation, she said.

Vann said EEAC is “really gratified” the court rejected the “impractical and unwieldy construction” advocated by EEOC that would make it difficult to draw any meaningful lines between supervisors and nonsupervisors in the Title VII context.

Meanwhile, Gregory G. Garre of Latham & Watkins in Washington, D.C., who represented Ball State, told BNA June 24 that the university is “pleased” with the majority's decision, but declined to provide further comment.

Seventh Circuit Found No Employer Liability

In the case, Vance alleged that Saundra 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 claimed another white co-worker used racial epithets and boasted about her family's ties to the Ku Klux Klan.

Vance also alleged that two white supervisors treated her poorly by giving her the “cold shoulder,” making faces at her, speaking to her with a “gruff tone of voice,” and treating white co-workers to lunch when she was absent.

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, and the U.S. District Court for the Southern District of Indiana subsequently granted summary judgment to the university.

The Seventh Circuit affirmed in June 2011, holding that Vance failed to establish a basis for employer liability. Among other things, the appeals 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. The First and Eighth circuits also have held that a supervisor must have power over other employees' formal employment status.

Meanwhile 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. However, the Seventh Circuit 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.” EEOC, as well as the Second, Fourth, and Ninth circuits, have defined supervisor as including employees who oversee another worker's daily assignments and performance.

Vance petitioned for review by the Supreme Court, which invited the solicitor general to weigh in on the definition of supervisor under Title VII (50 GERR 264, 2/28/12). The justices agreed to take the case in June 2012 (50 GERR 834, 7/3/12) and heard oral argument last November (50 GERR 1465, 12/4/12).

Majority Explains Importance of Defining 'Supervisor.'

The Supreme Court majority agreed with the narrower definition of supervisor used by the Seventh, First, and Eighth circuits, and affirmed the ruling below.

Justice Alito explained the importance of defining supervisor under Title VII because different employer liability rules apply depending on the identity of the alleged harasser.

If the harasser is a co-worker, he said, an employer is liable if it was negligent with regard to the harassment--that is, where the employer knew or should have known of the harassment, but failed to take correct it.

If the harasser is a supervisor, Supreme Court precedent in Faragher and Ellerth directs that an employer will be held “strictly liable” for harassment that leads to a tangible adverse employment action, Alito said.

A tangible employment action is “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,” he said.

However, in the absence of an adverse action, an employer may overcome liability by affirmatively 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.

Faragher/Ellerth Provides Framework for Definition

The court majority observed that Title VII's statutory language does not define the term supervisor, and rejected as “misguided” Vance's argument that the meaning of the term in “general usage” and in “other legal contexts” supports a broad interpretation.

“In general usage, the term 'supervisor' lacks a sufficiently specific meaning to be helpful for present purposes,” Alito wrote, adding that the definition of supervisor also can vary “from one legal context to the other.”

Alito said the Supreme Court in Faragher and Ellerth adopted supervisor as a “label for the class of employees whose misconduct may give rise to vicarious employer liability.”

“Accordingly, the way to understand the meaning of the term 'supervisor' for present purposes is to consider the interpretation that best fits within the highly structured framework that those cases adopted,” he said.

Neither case tackled the question of who qualifies as a Title VII supervisor, but an answer is “implicit in the characteristics of the framework we adopted,” Alito said.

“To begin, there is no hint in either Ellerth or Faragher that the Court contemplated anything other than a unitary category of supervisors, namely, those possessing the authority to effect a tangible change in a victim's terms or conditions of employment,” he wrote.

Indeed, in drawing a “sharp line between co-workers and supervisors” in terms of who has the power to cause “direct economic harm,” Alito said the “strong implication” from the cases is that “the authority to take tangible employment actions is the defining characteristic of a supervisor, not simply a characteristic of a subset of an ill-defined class of employees who qualify as supervisors.”

Vance argued that Faragher settles the instant case and supports her broad interpretation of supervisor because one of the alleged harassers deemed to be a supervisor in that sexual harassment case may not have had the authority to take tangible employment actions, but did have the power to assign work.

Rejecting this contention, Alito pointed out that the city defendant in Faragher never disputed the employee's characterization that the alleged harassers were her supervisors.

As such, he said, “this Court simply was not presented with the question of the degree of authority that an employee must have in order to be classified as a supervisor.”

Majority Rejects EEOC's 'Nebulous' Definition

Moreover, the majority rejected what it called EEOC's “nebulous” definition of supervisor, as relied on by Vance and followed by several federal appeals courts.

In enforcement guidance released in 1999, EEOC identified two types of employees who can qualify as a supervisor under Title VII: those authorized to make tangible employment decisions and those who lack such power but nevertheless can direct another's daily work activities (37 GERR 760, 6/28/99).

The guidance further stated that a supervisor's authority must be “of a sufficient magnitude so as to assist the harasser … in carrying out the harassment,” and that an employee “who directs only a limited number of tasks or assignments” generally would not qualify as a supervisor.

“We read the EEOC Guidance as saying that the number (and perhaps the importance) of the tasks in question is a factor to be considered in determining whether an employee qualifies as a supervisor,” Alito said. “And if this is a correct interpretation of EEOC's position, what we are left with is a proposed standard of remarkable ambiguity.”

EEOC's standards, he said, would present “daunting problems” for courts and juries, which would have to grapple with such issues as supervisor status, affirmative defense, and negligence, and be instructed about “two very different paths of analysis” depending on whether an alleged harasser is a supervisor or a co-worker.

By contrast, Alito said the issue of supervisor status “can very often be resolved as a matter of law before trial” under the majority's narrow definition.

“The elimination of this issue from the trial will focus the efforts of the parties, who will be able to present their cases in a way that conforms to the framework that the jury will apply,” he said.

Employees Not Left 'Unprotected,' Majority Says

In addition, Alito disagreed with the dissent's suggestion that the majority's standard will leave employees “unprotected” from harassing co-workers who have the ability to assign “unpleasant tasks.”

“In such cases, the victims will be able to prevail simply by showing that the employer was negligent in permitting this harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent,” he said.

Alito acknowledged a concern raised by Vance that employers may attempt to insulate themselves from harassment liability by designating only a few individuals as having the authority to make tangible employment actions. However, he said broadly defining supervisor is unnecessary to guard against that fear.

The individuals with such power likely “will have a limited ability to exercise independent discretion when making decisions” and thus will “rely on other workers who actually interact with the affected employee,” he said.

“Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies,” Alito said, explaining that the employer thus may not necessarily escape from heightened liability under Faragher and Ellerth.

Dissent: Harassment Victims Without Effective Remedy

Writing in dissent, Ginsburg said she would have followed EEOC's broad definition of supervisor and reversed and remanded the Seventh Circuit's ruling.

“Exhibiting remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC's Guidance, the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employee,” Ginsburg said. “Inevitably, the Court's definition of supervisor will hinder efforts to stamp out discrimination in the workplace.”

She said Congress tasked EEOC with enforcing Title VII, and the agency's guidance defining supervisor “paid close attention” to the Faragher/Ellerth framework, reflected the commission's “informed judgment” and “body of experience,” and recognized that “context is often key” in determining whether an employee qualifies as a supervisor.

“I would accord the agency's judgment due respect,” she said.

Ginsburg further argued that the majority's definition is “out of accord” with the agency principles governing Title VII, as affirmed in Faragher and Ellerth. For example, she said in “laboring” to establish that supervisor status in Faragher is not dispositive in the instant case, the majority “misses the forest for the trees.”

Faragher illustrates an all-too-plain reality: A supervisor with authority to control subordinates' daily work is no less aided in his harassment than is a supervisor with authority to fire, demote, or transfer,” she said.

She offered several other examples of cases in which an individual is authorized to control a person's daily work and uses that power to “aid in harassment,” but nevertheless would not be considered a supervisor under the majority's definition, thereby allowing the employer to avoid vicarious liability. Although she acknowledged that the employers in the cases she cited still might escape liability for reasons that did not involve supervisor status, Ginsburg said that “is no reason to restrict the definition of supervisor in a way that leaves out those genuinely in charge.”

In addition, Ginsburg said although the majority touted its standard's “simplicity and administrability,” there is “reason to doubt just how 'clear' and 'workable' the Court's definition is.” For example, she said the majority's definition of tangible employment action does not make clear what constitutes “significantly different responsibilities” in the reassignment context.

She also said the majority “can point to no evidence that jury instructions on supervisor status in jurisdictions following the EEOC Guidance have in fact proved unworkable or confusing to jurors.”

“As a consequence of the Court's truncated conception of supervisory authority, the Faragher and Ellerth framework has shifted in a decidedly employer-friendly direction,” Ginsburg wrote. “This realignment will leave many harassment victims without an effective remedy and undermine Title VII's capacity to prevent workplace harassment.”

The negligence standard used for co-worker harassment, she said, may not provide adequate protection to employees harassed by individuals “in control of their lives at work.” Employers can escape liability under that standard by showing a lack of actual or constructive notice of the harassment, she said.

Lastly, Ginsburg observed that Congress has in the recent past “intervened to correct this Court's wayward interpretations of Title VII.” For instance, the Lilly Ledbetter Fair Pay Act, signed into law by President Obama in January 2009 (47 GERR 127, 2/3/09), superseded the high court's ruling in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 100 FEP Cases 1025 (2007) (45 GERR 682, 6/5/07).

“The ball is once again in Congress' court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today,” she said.

Daniel R. Ortiz of the University of Virginia School of Law's Supreme Court Litigation Clinic in Charlottesville, Va., and David T. Goldberg of Donahue & Goldberg in New York represented Vance. Gregory G. Garre of Latham & Watkins in Washington, D.C., and Scott E. Shockley of DeFur Voran in Muncie, Ind., represented Ball State.


Text of the decision is available at http://op.bna.com/dlrcases.nsf/r?Open=jaca-98ymu7.