*By Emily A. Smith
The United States Supreme Court held today that an employee is a “supervisor” for purposes of creating liability under Title VII only if the employer empowers the supervisor to take tangible employment actions against the victim.
In Vance v. Ball State University, et al., No. 11-556 (June 24, 2013), Maetta Vance (“Vance”) worked for the University Dining Services at Ball State University (“Ball State”). Vance was the only African-American working in her department. She complained to Ball State that Saundra Davis (“Davis”), a coworker, directed racial slurs at her and struck her in the head. Vance also filed charges with the Equal Employment Opportunity Commission (“EEOC”) alleging racial harassment and discrimination. She complained that Davis “gave her a hard time at work by glaring at her, slamming pots and pans around her, and intimidating her.” Vance also claimed that another employee bragged about her Ku Klux Klan membership and used racial slurs. Ball State investigated each of Vance’s complaints. Ball State tried to separate Vance and Davis, and counseled and issued warnings to the offending employees, but the alleged workplace harassment continued.
Vance filed suit in federal court claiming that she was subjected to a racially hostile work environment in violation of Title VII. She alleged that Davis was her supervisor, and Ball State was liable for Davis’ creation of a racially hostile work environment as a result. The district court granted Ball State’s motion for summary judgment, finding that Davis was not Vance’s supervisor because she could not “hire, fire, demote, promote, transfer, or discipline” Vance. Additionally, the district court held that Ball State could not be liable for negligence because it responded reasonably to incidents it knew about. The Seventh Circuit Court of Appeals affirmed the district court’s decision for the same reasons.
The United States Supreme Court affirmed the lower courts’ decisions. The Court held that an employer may only be vicariously liable for an employee’s unlawful harassment when the employer has empowered the 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.” The Court rejected both the EEOC’s and Vance’s broad definition of “supervisor.” In doing so, the Court noted that its prior decisions in Burlington Industries, Inc. v. Ellereth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998), drew a sharp line between coworkers and supervisors and implied that the authority to take tangible employment actions was the defining characteristic of a supervisor. The Court compared the uncontested supervisory nature of the harassers in Ellereth and Faragher with Davis, who was not empowered to take any tangible employment actions against Vance and was therefore not a supervisor. Consequently, Ball State was not liable because Davis was not a supervisor.
This decision bodes well for employers. While employers must still take steps to eradicate any form of harassment, an employer will only be liable for co-worker harassment if it was negligent in controlling working conditions. To avoid such negligence, all employers should have an up-to-date harassment policy, train employees on the use of the policy, and promptly investigate and remediate all claims of harassment. Employers should also take steps to clarify and delineate the roles and power of employees, especially those who schedule shifts and assign work.
*Emily A. Smith practices in all areas of employment litigation. Emily has extensive experience helping employers navigate through supervisor liability under Title VII and related employment issues. For more information about this ever changing area, please contact Zashin & Rich at 216.696.4441.
