Employers have a duty to provide a safe workplace, free from workplace harassment. If one employee harasses another and the employer knew or should have known about it, the employer can be held liable. Employers may also be deemed vicariously liable in any case where the harasser is a supervisor.
As such, the definition of “supervisor” becomes materially relevant, and employers need to understand how the court views whether or not a coworker may be deemed a supervisor. In the Supreme Court case Vance v. Ball State, the Court narrowed the definition of a supervisor, which may help employers because there may be fewer instances of vicarious liability when workplace harassment occurs.
Let’s first take a look at the legal definition of harassment, and then take a look at the details of Vance v. Ball State.
Defining Workplace Harassment
“From a strictly legal perspective, unlawful harassment is a form of discrimination that violates Title VII of the Civil Rights Act of 1964,” John Gannon told us in a recent BLR webinar. This includes, but is not limited to sexual harassment.
In general, there are two types of sexual harassment:
- Quid pro quo harassment occurs when some type of benefit is made contingent on participating in sexual or related activity. For example, if an employee is told that they will get good reviews if they agree to date their supervisor, or, vice versa, if the employee declines advances and thus doesn’t get a raise.
- Hostile work environment can be more subtle and thus much more difficult to define. It occurs when an employee is subjected to an unbearable work environment. As opposed to quid pro quo, in a hostile work environment there need not be a requirement of exchanging one thing for another. Here are some examples of conduct that could create a hostile work environment:
- Sexual advances, requests or other conduct of sexual nature
- Any conduct that is unwanted and unwelcome
- Severe and pervasive conduct resulting in an intimidating, offensive, or humiliating work environment
- Conduct which unreasonably interfered with work performance or altered employment conditions
Under Title VII, an employer’s liability for workplace harassment may depend on the status of the harasser. If the harassing employee is the victim’s coworker, the employer is only liable if it was negligent in controlling working conditions. This means that the employer either knew or should have known and didn’t stop it—or worse, discouraged complaints. On the other hand, with a strong policy encouraging employees to report harassment (and follow through on complaints), the employer will have a strong defense that they were not negligent.
If the harassing employee is a supervisor, different rules apply.
“If the supervisor’s harassment itself results in what’s called a ’tangible employment action’ the employer is automatically liable. There’s no defense here.” Gannon explained.”A tangible employment action is one that significantly changes an employee’s employment status”
However, if there is harassment by a supervisor but there is no tangible employment action, then the employer may have an affirmative defense, and the employer may escape liability. The employer must prove 1) that the employer exercised reasonable care to prevent and correct promptly any harassing behavior; and 2) that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities that the employer provided. This is often called the Faragher-Ellerth defense, named after a case from more than a decade ago.
It’s easy to see why the definition of supervisor becomes critical. In fact, it was critical in the Vance v. Ball State case. The primary question presented in the case was: who qualifies as a supervisor for the purposes of workplace harassment?
&quo;That may seem like a simple question, but it has really major implications in the hostile work environment harassment arena. And this is really because there are really different standards used to determine whether an employer is liable for the harassment in the workplace, based on whether or not the employee qualifies as a supervisor or non-supervisor.&quo; Gannon noted.
Vance v. Ball State and the Definition of Supervisor
Here’s the case context:
Maetta Vance was the only African-American employee in the catering department at Ball State University (BSU). After 18 years there and after filing numerous complaints alleging harassment on the basis of race by her coworkers, Vance filed a lawsuit against the university. Vance alleged that Saundra Davis, a white coworker, harassed her on the basis of race in violation of Title VII.
While the parties agreed that Davis did not possess the power to take tangible employment actions against Vance, they vigorously disputed Davis’ duties otherwise. Vance said that Davis was her supervisor, while BSU maintained that Davis was just a coworker.
When the case went to District Court, they ruled that Davis was not Vance’s supervisor because she did not have the power to hire, fire, demote, promote, transfer or discipline her. Thus, Vance could not recover from BSU (and BSU was not liable) unless she could prove negligence with respect to Davis’ conduct, which the court determined she could not.
Vance appealed. The Seventh Circuit agreed with the District Court. Vance appealed the Seventh Circuit’s ruling and the Supreme Court agreed to hear the case. The Supreme Court also affirmed the original decision.
The net result here is that the court ended up defining who is a supervisor (i.e., whose harassing conduct is an employer vicariously liable for?). They defined this as an employee who has been empowered by the employer “to take tangible employment actions against the victim,” including “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”
In doing so, the Court rejected the broad definition used by some courts and the EEOC that a supervisor is an employee who has the authority to direct another employee’s daily activities. The Court’s solidified definition of supervisor is also implicit in the Faragher-Ellerth defense, which draws a sharp line between coworkers and supervisors. There was already a strong implication of the Faragher-Ellerth framework that the authority to take tangible employment actions is the defining characteristic of a supervisor, and the supervisor has the authority to inflict direct economic injury on subordinates.
For more information on workplace harassment and the definition of supervisor for these purposes, order the webinar recording of “Supreme Court Roundup: The Latest Labor and Employment Law Rulings Explained.” To register for a future webinar, visit http://store.blr.com/events/webinars.
John S. Gannon is an associate with Skoler, Abbot & Presser, P.C. and practices in the firm’s Springfield, Massachusetts, office. He defends employers against discrimination, retaliation, harassment, wrongful termination, and related claims.