Employment Alert: Supreme Court Asked to Clarify Definition of "Supervisor" under Title VII

The Seventh Circuit's recent interpretation of "supervisor" under Title VII reflects a critical split in the federal circuits. The case is Vance v. Ball State University.

The Facts of the Case

Maetta Vance was the only African-American employee in the catering department at Ball State University. In 2005, Ms. Vance filed several complaints with Ball State about her co-workers' racially-charged and offensive comments. Ball State fully investigated each complaint.

The harassment continued and Ms. Vance filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). Ms. Vance alleged that three co-workers created a hostile work environment by harassing her and that at least one of the alleged harassers was her supervisor.

Title VII defines a supervisor as "someone with power to directly affect the terms and conditions of the plaintiff's employment."

The Seventh Circuit has consistently interpreted supervisory authority to mean "the power to hire, fire, demote, promote, transfer, or discipline an employee."

Ball State argued, and the court found, that none of the named parties qualified as Ms. Vance's supervisor and instead analyzed Ms. Vance's claims under the framework for co-worker conduct.

Under an Ellerth and Farragher defense, the distinction between supervisor and co-worker is critical.

If a supervisor creates a hostile environment, an employer can avoid liability only if it can establish that (1) it reasonably tried to prevent harassment through an established program for dealing with such behavior and (2) the complaining employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer and instead proceeded directly to court without giving the employer the opportunity to implement its corrective program.

However, if the alleged harasser is merely a co-worker, an employer may avoid liability if it can show that (1) it neither knew nor should have known about the alleged harassment and (1) it took prompt and appropriate corrective action.

The court granted summary judgment for Ball State, finding first that the co-workers were non-supervisory, and next that Ball State satisfied its obligations by promptly investigating each of Ms. Vance's complaints and taking appropriate disciplinary action.

The Circuit Split

The Second, Fourth, and Ninth Circuits, and the EEOC, have broadly interpreted a "supervisor" as an employee with authority to direct and oversee an employee's daily work.

The First and Eighth Circuits have agreed with the Seventh Circuit's supervisor interpretation, which is limited to the power to hire, fire, demote, promote, transfer, or discipline.

The different standards applied in the various circuits have led to different outcomes for litigants.

What Employers Should Do

If the Supreme Court accepts the expanded definition of supervisor, employer liability will substantially increase. The courts could deem employees with little to no authority outside of day-to-day management as supervisors.

As a result, an employer may be liable for a subordinate's harassing conduct even when a complaining employee failed to avail himself of the employer's anti-harassment program.

Employers should be aware of the current law in their circuit. Along with promptly investigating any harassment claims, and taking appropriate corrective action, employers should record instances where a complainant specifically requests that no investigation be conducted or action be taken.

For more information about this and other employment matters, please contact:

Manesh K. Rath (+1 202.434.4182, rath@khlaw.com),
Jacquelyn L. Thompson at (+1 202.434.4209, thompsonj@khlaw.com).