The Supreme Court this year in the matter of Vance v. Ball State University clarified the ambiguity among the various federal circuits as to the definition of a “supervisor” as applied under Title VII and per EEOC Guidance of the same. Maetta Vance, an African American woman, filed a lawsuit against her employer, Ball State University claiming a racially hostile work environment by Saundra Davis.
Under Title VII, the status of the harasser controls the issue vicarious liability of the employer. If the harassing employee is a co-worker, there is liability imputed upon the employer only if it was negligent in controlling working conditions. Initially, the district court granted Ball State University summary judgment holding that Davis could not take “tangible employment action” against Vance and therefore was not a supervisor. The district court more specifically held that Davis could not “hire, fire, demote, promote, transfer, or discipline” Vance and therefore was not a supervisor under the 7th circuit’s interpretation of that concept. Vance could only go forward against Ball State University if she could prove negligence by the University. The question as to who qualifies as a supervisor was left open in Burlington v. Ellerth, 524 U.S.742 and Faragher v. Boca Raton 524 U.S. 775. In Ellerth, a tangible employment action was “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. These cases went on to hold that there can be vicarious liability when there is no tangible employment action if there is no affirmative defense for the company permitting the creation of hostile work environment by the supervisor. The employer would have to show that it “exercised reasonable care to prevent and promptly correct any harassing behavior” and “the Plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities that were provided.” Faragher supra at 807. The Courts felt that this was a perfect compromise between agency principles of vicarious liability caused by misuse of supervisor authority and the main thrust of Title VII.
In this case, all parties agreed that Davis did not have any authority to take tangible employment actions against Vance. However, other Courts have followed the open ended approach by the EEOC which qualifies a supervisor as one who has the ability to “exercise significant direction over another’s daily work.” See EEOC Guidance 33305874 and Mack v. Otis Elevator, 326 F.3d 116. In the opinion, the high court took a direct shot at the EEOC’s expansive definition of supervisor as “nebulous” and petitioner’s “reliance on colloquial uses of term supervisor” as being misplaced.
The term supervisor has varying meanings both in its colloquial use and reference under the law. There are numerous references in the federal code to distinguish a supervisor and they all contemplate the ability to take tangible employment actions. It is interesting to note that Congress did not textually use the word “supervisor” in Title VII but was rather adopted by the Court in Ellerth and Faragher as a label for those employees “whose misconduct may give rise to vicarious employer liability.”
The dissent in Vance articulated a clear concern that distinguishing supervisors per their holding would preclude employer liability in other cases. The majority responded that a Plaintiff could still prevail by demonstrating negligence by the employer in failing to prevent harassing conduct. They went so far as to include the following examples of employer liability: failure to monitor the workplace, respond to complaints, provide a system for registering complaints, or effectively discourage filing complaints.
If you are subject to a hostile work environment, it is incumbent upon you as the employee to provide written notice of harassing conduct to a “supervisor” whom nobody would question as having authority to take “tangible employment actions.” While verbal notice is sufficient, it will assist you to have written evidence that cannot be denied by the employer. If there is a hotline to report harassment, then you are expected to take advantage of that opportunity. Write down the date and time of the call and whom you spoke with. In cases that our firm has handled, the company denied the call ever took place. Technology today provides you opportunities to acquire proof of the call. In Tennessee, you are legally able to record the call which I suggest to all of my clients. On a final note, send a letter certified mail to your human resources department or corporate officer.
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