The United States Supreme Court's decision in Vance v. Ball State just made it easier for employers to defend against some Title VII harassment lawsuits. In a 5-4 decision, the Court rejected the harassment claims brought by a catering assistant employed at an Indiana university because the alleged harasser did not have enough authority over the plaintiff to be considered her supervisor. By narrowing the definition of "supervisor," plaintiffs will likely find it more difficult to prove harassment claims.
The Facts in Vance
Plaintiff Maetta Vance worked for Ball State University's Banquet and Catering Department for over 15 years. General Manager Bill Kimes was Vance's direct supervisor. Vance complained in 2005 that she had been threatened by catering specialist Saundra Davis, and that another employee, Connie McVicker, had called her racial slurs. Ball State investigated and gave McVicker a written warning, but because Ball State received conflicting accounts of the incident with Davis, it decided to counsel both employees regarding their behavior.
Over the next two years, Vance continued to complain about her treatment by McVicker and Davis, ultimately leading to her lawsuit. The trial court dismissed all of Vance's claims including her hostile work environment claim, which involved the actions taken by Davis. The court found that Davis was only a co-worker – not a supervisor, because Davis could give Vance basic orders or directions on how to do her job not discipline or fire her. Vance appealed to the Seventh Circuit Court of Appeals, which affirmed the decision, holding that Davis was not a supervisor since she did not have the power to "hire, fire, demote, promote, transfer or discipline" Vance.
Why Vance Matters
The importance of Vance dates back to 1998 when the Supreme Court published two decisions – Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth – that set the legal standard for how courts analyze Title VII harassment claims. That approach essentially split harassment claims into two categories – those committed by co-workers, and those committed by supervisors.
Under the Faragher and Ellerth standard, an employer will only be liable for harassment by a co-worker if it unreasonably failed to prevent or stop the harassment. In other words, did the employee prove that the employer knew or should have reasonably known about the harassment, and did it fail to stop it?
Harassment by supervisors, however, creates a much bigger problem for employers. For supervisor harassment cases, the first question asked by the court is whether the employee suffered a "tangible adverse employment action" – i.e., was the employee fired or denied a promotion? If so, then the employer is strictly liable.
But in supervisor harassment cases where there was no tangible adverse employment action, the employer is not automatically liable. To avoid liability, however, the employer bears the burden of proving that it took reasonable steps to prevent and correct the harassing behavior, and that the employee unreasonably failed to take advantage of the opportunities the employer offered to reduce the harm. For instance, did the employer have an anti-harassment policy with a reporting mechanism to bypass the harassing supervisor, and did the employee fail to report the harassment?
Employers obviously fare far better in harassment cases where the court determines that the alleged perpetrator was a co-worker, not a supervisor. The problem with the Faragher and Ellerth standard is that the Supreme Court never defined the term "supervisor." In the 15 years since Faragher and Ellerth, different jurisdictions have developed different opinions about the fundamental question of exactly who is a supervisor.
The Vance v. Ball State opinion answered that question in favor of employers by narrowing the list of potential supervisors down to only those whom the employer has given the power to take "tangible employment actions" against the plaintiff employee, such as the ability to hire, fire, promote, reassign to a position with significantly different responsibilities, or cause significant change in benefits. Thus, the employer may not be held strictly liable for the actions of lower-level lead persons or supervisors who lack the authority to take such actions. The majority noted that its decision was meant to provide a bright line test in harassment cases so disputes can be more quickly analyzed and resolved.
What Employers Should Do Now
While this ruling may lessen the chance that some harassment cases will result in strict liability, employers should not forget their ongoing obligation to train their management and non-management employees to prevent both supervisor and co-worker harassment. Employers still have a responsibility to create workplaces free from unlawful harassment. In addition to those normal housekeeping measures, employers should also be reviewing their job descriptions to clarify which "managers" fit the Court's definition of "supervisors." In doing so, employers must also be sure that their written job descriptions actually reflect the duties and responsibilities of their employees.
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