In Vance v. Ball State University, the U.S. Supreme Court recently reviewed a case in which an African-American employee claimed that her employer should be liable for racial harassment allegedly perpetrated by a co-worker because the co-worker functioned in a supervisory capacity. The Supreme Court upheld the lower court’s dismissal, finding that the co-worker was not a supervisor under Title VII of the Civil Rights Act (“Title VII”), and, therefore, the employer was not strictly liable for the co-worker’s alleged actions.
In its decision, the Court narrowed the definition of “supervisor” for purposes of finding an employer vicariously liable for co-worker harassment under Title VII. An employee is a “supervisor” only if he or she is authorized to take tangible employment actions against the alleged victim of harassment. The Court found that a “supervisor” must have the ability to hire, fire, demote, promote, or otherwise take tangible employment actions.
Vance was the only African-American employee in a University’s banquet and catering department. Vance claimed that one of her alleged harassers, a white woman who was employed as a catering specialist, harassed her by glaring at her, slamming pots around, intimidating her, blocking her at the elevator, and giving her “weird” looks. Vance alleged that this woman was her supervisor because she had the authority to direct Vance’s day-to-day activities. Vance claimed that the university would be strictly liable under Title VII for any harassing behavior of a supervisor that affected Vance’s conditions of employment.
The Court found that the catering specialist was not a supervisor, and that the university was not strictly liable for any alleged harassment. The catering specialist led or directed Vance and other employees in the kitchen. However, the Court held that a supervisor must have the power to make a “significant change” in another worker’s employment status, such as hiring, firing, failing to promote, demote, reassigning with “significantly different responsibilities” or causing a “significant change in benefits.” The catering specialist did not have this authority.
The Court rejected the EEOC’s broader definition of “supervisor”, which would have included employees who lack the authority to make tangible employment decisions but merely direct other workers day-to-day activities. The Court called the EEOC’s definition a “study in ambiguity” that would make litigation “far more complex and difficult” as opposed to the definition adopted by the Court. Instead, the Court focused on whether the alleged supervisor had the power to cause direct economic harm by taking tangible employment action.
The Takeaway
The pace of today’s business environment requires supervisors to delegate certain managerial duties, such as scheduling and assignment of daily duties. The Supreme Court has recognized this blurring of traditional supervisory roles by narrowing Title VII’s definition of “supervisor” and rejecting the EEOC’s nebulous definition. In order to take advantage of the Supreme Court’s decision, procedures that employers should consider implementing include:
- Determine which employees have the authority to hire, fire, demote or promote.
- Specifically refer to this authority in managerial and supervisory job descriptions, but only if you actually intend them to have this authority.
- Revise job titles so they are consistent with the presence or absence of supervisory authority.
- Address the exercise of the authority to hire, fire, demote, and promote and performance evaluations.
- Clarify that employees who carry out delegated tasks like assignment or scheduling are distinct from supervisors.
- Train, train, and train supervisors again on the principles of non-discrimination and anti-harassment.
Remember that “supervisors” might be defined more broadly under state or local law. Under Wisconsin law, a court or state agency will conduct a more complex analysis of: (1) the authority to effectively recommend the hiring, promotion, transfer, discipline or discharge of employees; (2) the authority to direct and assign the workforce; (3) the number of employees supervised and the number of other persons exercising greater, similar or lesser authority over the same employees; (4) the level of pay, including an evaluation of whether the supervisor is paid for his skill or for his supervision of employees; (5) whether the supervisor is primarily supervising an activity or is primarily supervising employees; (6) whether the supervisor is a working supervisor or whether he spends a substantial majority of his time supervising employees; and (7) the amount of independent judgment and discretion exercised in the supervision of employees. Additionally, it remains to be seen whether the Vance decision extends to other federal laws, such as the NLRA.
Wisconsin employers must continue to apply both the intentionally simplified federal definition of “supervisor” and the more complex balancing required under state law. However, the review of supervisory authority discussed above should be a helpful start to that process. If you have any questions regarding this article, please contact your Davis & Kuelthau attorney.