Vance v. Ball State University
Petitioner Maetta Vance contends that Saundra Davis, a catering specialist, had made Vance’s life at work contentious through physical acts and racial harassment. Vance sued her employer, respondent Ball State University, for workplace harassment by a supervisor. To win a lawsuit for co-worker harassment under Title VII of the Civil Rights Act of 1964, it is necessary to show that the employer is negligent in responding to complaints about harassment; however, to win a lawsuit for harassment by a supervisor, the employer does not have to be negligent because Title VII imputes the supervisor’s acts to the employer. Vance asserted that Davis was a supervisor although Ball State claimed Davis was not actually Vance’s supervisor. The District Court and Court of Appeals for the Seventh Circuit determined that Davis was not Vance’s supervisor because Davis did not have the power to direct the terms and conditions of Vance’s employment. Additionally, both courts found that Ball State had an adequate system in place for reporting and investigating claims of harassment under Title VII and thus the university could not be negligent. If Vance wins, the definition of supervisor under Title VII will expand to include more than just those who can hire, fire, demote, promote, or discipline an employee. If Ball State wins, the definition of supervisor under Title VII may expand; however, it would likely be limited to persons who actually control an employee’s daily activities.
In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the Supreme Court held that under Title VII, an employer is vicariously liable for severe or pervasive workplace harassment by a supervisor of the victim. If the harasser was the victim's co-employee, however, the employer is not liable absent proof of negligence. In the decision below, the Seventh Circuit held that actionable harassment by a person whom the employer deemed a “supervisor” and who had the authority to direct and oversee the victim's daily work could not give rise to vicarious liability because the harasser did not also have the power to take formal employment actions against her. The question presented is:
Whether, as the Second, Fourth, and Ninth Circuits have held, the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim's daily work, or whether, as the First, Seventh, and Eighth Circuits have held, the rule (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victims.
Whether, for purposes of employer liability for racial harassment in the workplace, an employee must have the power to tangibly affect the employment status of the victim in order to be considered a supervisor.
Vance began working for the Ball State University Banquet and Catering Division of University Dining Services in 1989. See Vance v. Ball State Univ., 646 F.3d 461, 465 (7th Cir. 2011). She first worked as a substitute server, but she became a part-time catering assistant in 1991 and a full-time catering assistant in 2007. See id.at 465. Sometime before 2001, Vance and co-worker Saundra Davis engaged in an oral altercation that ended with Davis’s slapping Vance in the head. See id.at 465. Vance notified her employer about the incident, but she did not pursue a formal complaint because shortly thereafter Davis transferred to another department to accept a full-time position. See id.at 465.
In 2005, Davis returned to the Banquet and Catering Division as a Catering Specialist, where she was responsible for supervising and providing leadership for kitchen assistants and substitutes. See id. at 466. The conflict between Davis and Vance resumed on September 23, 2005 when Davis blocked Vance from exiting an elevator, saying, “I’ll do it again,” referencing the prior slapping incident. See id.at 466.Around the same time, Vance overheard Davis refer to her with epithets like “Sambo” and “Buckwheat,” and she occasionally did so in the presence of other employees. See id.at 467.Also in September 2005, Vance was told that co-worker Connie McVicker had bragged about McVicker’s family ties to the Ku Klux Klan and referred to Vance using a racial slur. See id.at 466. In November 2005, Vance reported that McVicker had called her a “porch monkey,” and in December 2005 Vance complained that Davis glared at her and slammed pots and pans around her. See id.at 466. In May 2006, Vance alleged that Davis blocked her way at the elevator. See id.at 467. Vance filed suit in October 2006, alleging hostile working environment and retaliation claims under Title VII. See id.at 465. In August 2007, Vance reported that Davis taunted her by asking, “Are you scared?” and referenced the prior slapping incident. See id.at 467. Throughout this time, Vance was consigned to “entry level duties” and when both Vance and Davis were in the kitchen, Davis could assign Vance certain duties, but usually work assignments came from the chef. See id.at 468.
After each of these events, Vance filed formal complaints with supervisor Bill Kimes. See id., at 465-68. Kimes investigated each of these incidents and after the May 2006 incident, Kimes and other managers tried to separate Vance and Davis. See id.at 467. Additionally, Ball State counseled Vance and Davis in an attempt to improve their working relationship. See id.at 467. After investigating Davis’s behavior, Ball State found no basis to take disciplinary action, but formally warned Davis for her August 2007 comments. See id.at 466. In response to investigations into McVicker’s behavior, Ball State skipped a verbal warning and issued McVicker a written warning on November 11, 2005. See id.at 466. Additionally, the Assistant Director of the Office of Compliance met with McVicker to discuss her conduct. See id.at 466.
Vance filed the action against Ball State in October 2006; however, the district court granted Ball State’s motion for summary judgment. See Vance v. Ball State Univ., 646 F.3d at 468. The district court found that Ball State could not be liable for Davis’s actions as a supervisor under Title VII because Davis did not have the power to hire, fire, demote, promote, transfer, or disciple Vance, and the periodic authority to direct the work of other employees did not make Davis a supervisor. See Vance v. Ball State Univ., 2008 WL 4247836 (S.D. Ind. Sept. 10, 2008). The district court also held that Ball State had properly addressed every complaint filed by Vance and that the actions of the university were reasonable to prevent future harassment. See Vance v. Ball State Univ., 646 F.3d at 468. The Seventh Circuit affirmed the district court ruling, holding that Davis was not Vance’s superior because she lacked the ability to hire, fire, demote, promote, transfer, or discipline Vance. See id.at 470. In addition, the Seventh Circuit found that even if Davis and McVickers had created a hostile work environment, Ball State was not liable because it promptly and thoroughly investigated all claims, taking disciplinary action when needed. See id.at 471.
Purpose of Title VII
Workplace harassment based on race, color, national origin, religion or sex is prohibited by Title VII. See Brief of National Partnership for Women & Families, et al., (“National Partnership”) in Support of Petitioner at 4. As the Supreme Court noted in Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998), the purpose of Title VII is not “to provide redress but to avoid harm.” Consequently, potential liability under Title VII increases employers’ incentives to monitor supervisors and create systems for which employees can file complaints. See Brief of United States at 24-25. From a policy perspective, National Partnership asserts that Title VII is less effective if it only applies to high-level supervisors and not to supervisors who control workers’ daily activities. See Brief at 15. Overall, if Vance wins, there will likely be an increased focus on immediate supervisors because directing daily work assignments increases the potential for and impact of abuse. See Brief for Petitioner at 32. If Ball State wins, there will still be an increased focus on immediate supervisors; however, the definition of control over daily work assignments will be more restricted. See Brief for Respondent at 45.
As the Seventh Circuit noted, if a supervisor is responsible for creating an abusive workplace environment based upon harassment, then the employer is responsible for the supervisor’s acts under Title VII. See Vance v. Ball State Univ., 646 F.3d at 469-70. Title VII does not define “supervisor,” and there is no clear authority distinguishing between co-workers and supervisors. See id.At 470. Both Vance and Ball State assert that the Seventh Circuit definition of “supervisor” does not meet the realities of the workplace and is too restrictive; however, the parties disagree how supervisor should be defined and whether the new definition could include the facts of this case. See Brief for Petitioner at 18; Brief for Respondent at 32.
Submitting a brief in favor of neither party, the Federal Government observes that the definition of supervisor should mirror the definition provided by the Equal Employment Opportunity Commission (“EEOC”). See Brief of United States at 9. The United States notes that the EEOC definition of a supervisor focuses on the power an individual may have over another and whether or not the individual is in the “supervisory chain of command.” See id. at 6–7. As a result, the United States asserts, the EEOC definition of a supervisor also includes control over daily work activities. See id. at 7.
Further, National Partnership argues that expanding employer liability to include direct supervisors will increase employer incentives to create better harassment policies, improve training, and improve monitoring. See Brief at 30. National Partnership asserts that supervisor harassment derives from the overall employment environment, and that harassment will not end without employers making structural changes. See id. at 30-31. Thus, National Partnership argues that a more expansive definition of supervisor will increase employer accountability and decrease harassment. See id. at 31.
Conversely, the United States Chamber of Commerce asserts that expanding employer liability to include direct supervisors, but not establishing a bright-line definition for supervisors, will leave employers without sufficient guidance and decrease incentives for prevention efforts. See Brief in Support of Respondent at 16. The Chamber of Commerce argues employers’ resources will be stretched too thin without knowing where to focus training and monitoring. See id. at 17. Ultimately, the Chamber of Commerce asserts that expanding employer liability too far creates a catch-22 between overly broad, yet ineffective, and narrow, yet effective, preventative measures. See id. at 18.
Vance advocates expanding the definition of supervisor either by finding the Seventh Circuit definition to be too narrow or by explicitly adopting the definition used by the U.S. Second Circuit Court of Appeals. See Brief for Petitioner at 45. According to Vance, the Second Circuit definition is much broader, and it could cover all individuals given authority by the employer over the employee. See Brief for Petitioner at 45. Conversely, Ball State advocates broadening the Seventh Circuit definition, but it argues that the definition should be based upon the workplace realities rather than titles. Factors germane to daily supervision include: actual control over daily work activities, the victim’s knowledge of control over their daily work activities, a lack of on-the-scene access to a higher ranking employee for the victim, and temporary control of daily work activities, which only creates liability if the harm occurs during the temporary period. See Brief for Respondent at 49–57. Ball State’s limits on what would make someone a supervisor is more restrictive; however, Ball State argues that the limiting principles narrow the focus to individuals actually exercising supervisory authority. See id. at 57.
Overall, it is very likely that this decision will expand the Seventh Circuit definition of “supervisor;” however, the Supreme Court will decide how broad the definition should be and whether or not there will be limiting principles that provide further guidance regarding how the definition may be limited.
Among other things, Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to engage in discriminatory practices based on its employees’ race. See 42 U.S.C. § 2000e–2(a)(1). Under Title VII, the employer may be liable for the improper actions of its employees; however, the standard that a court will apply to the employer depends on whether the employee was a supervisor of the victim or merely a co-worker. See Vance v. Ball State University, 646 F.3d at 469–70. In Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, the Supreme Court held that the employer would automatically be liable for the employee’s conduct if the employee was a supervisor and took a tangible employment action. See Vance, 646 F.3d at 469–70. Tangible employment actions include hiring and firing an employee or changing an employee’s work assignments. See Faragher, 524 U.S. at 790. On the other hand, the employer will not be liable for the conduct of an employee who was a co-worker of the victim unless the employer was negligent in learning of or responding to the inappropriate conduct. See Vance, 646 F.3d at 469–70.
The Seventh Circuit ruled that, in this context, a “supervisor” is restricted to employees with the power to hire, fire, promote, transfer, or discipline other employees. See id., at 470 (quoting Hall v. Bodine Electric Co., 276 F.3d 345, 355 (7th Cir. 2002)). The Seventh Circuit noted that, unlike other circuits, it did not consider the authority over an employee’s daily work sufficient to make one a supervisor. See id. At 470. The Seventh Circuit concluded that Vance did not demonstrate that Davis had the requisite control over Vance to qualify as a supervisor, so the court therefore considered Davis as Vance’s co-worker. See id.
The parties agree largely on how a court should address a given case. Both Vance and Ball State assert that a “supervisor” under Title VII is not limited to those employees with the powers enumerated by the Seventh Circuit. See Brief for Petitioner at 18; Brief for Respondent at 27. Rather, the parties agree that one with the authority to oversee the work of others on a daily basis could count as a supervisor. See Brief for Petitioner at 29; Brief for Respondent at 26. In determining whether a given employee is a supervisor, the parties both stress that a court should look to the functioning work relationship. See Brief for Petitioner at 39; Brief for Respondent at 31–32. Additionally, both parties argue that the Court should adopt the approach used by the Second Circuit in determining whether an employee is a supervisor, which turns on whether an employee’s authority over the victim gave rise to and facilitated the improper treatment. See Brief for Petitioner at 17; Brief for Respondent at 26.
The Supreme Court’s Decisions in Ellerth and Faragher
In Ellerth and Faragher, the Supreme Court ruled that an employer would be liable for the harassment of an employee by “a supervisor with immediate (or successively higher) authority over the employee.” See Ellerth, 524 U.S. at 764–65; Faragher, 524 U.S. at 807. As noted by Vance, the Court’s ruling did not exclude lower-level figures that oversee an employee’s day-to-day work. See Brief for Petitioner at 19. Ball State agrees that this form of supervision fits well within the Court’s rule, provided the daily interaction gave rise to the harassment. See Brief for Respondent at 26. Both parties highlight the possibility that the particularly close contact between employee and supervisor could provide the opportunity for greater abuse. See Brief for Petitioner at 19–21; Brief for Respondent at 26.
Additionally, the parties both point to guidelines generated by the EEOC. See Brief for Petitioner at 41, 47; Brief for Respondent at 29. The EEOC’s guidelines specifically state that, for purposes of Title VII employer liability, one need not have the power to make employment decisions about the employee to be a supervisor. See EEOC Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors. Rather, according to the EEOC definition, a supervisor could also be one with the power to “direct the employee’s daily work activities.” Id. The United States notes that the EEOC is the federal agency in charge of enforcing Title VII so the Court should give some weight to its interpretation of the statute. See Brief of United States at 26. Vance and Ball State agree and see the EEOC guidance as fitting within the Second Circuit’s restriction on liability to situations where the supervisory role enabled the improper treatment. See Brief for Petitioner at 47 & n.12; Brief for Respondent at 29–30.
Principles of Agency Law
The Court has concluded that Title VII incorporated principles of agency law in its allocation of liability to employers for their employees’ conduct. See Ellerth, 524 U.S. at 754; Brief of United States at 11.Under standard conceptions of employer liability, an employer is liable for harms caused by an employee—the employer’s agent—provided the harm arose from the employee’s work for the employer. See NOLO entry on Employer Liability for an Employee’s Bad Acts.The employer will be vicariously liable for the employee’s conduct despite the fact that the employer may have acted properly. See id. In this case, the parties assert that a less restrictive reading of supervisor for the purposes of Title VII would be more consistent with those principles. See Brief for Petitioner at 29; Brief for Respondent at 22. Although workplace harassment falls outside the scope of an employee’s work, the Supreme Court has held employers liable where the employee’s supervisory role enabled the harassment. See Brief for Petitioner at 29; Brief for Respondent at 21–22. Both parties acknowledge that the power over an employee’s daily work could enable harassment. See Brief for Petitioner at 29; Brief for Respondent at 26.
THE SUPREME COURT’S NEXT STEP
In its brief, Ball State goes on to argue that, even with a broader definition of supervisor under Title VII, Davis would not fall into that category. See Brief for Respondent at 39. As a result, Ball State maintains that the Supreme Court, if it expands the definition, should simply apply this new standard to Davis rather than remand the case to a lower court. See id. at 50. According to Ball State, Davis did not have control over Vance’s daily work; further, Vance did not definitively consider Davis to be her supervisor. See id. at 52. Additionally, Ball State believes that application of a new standard by the Supreme Court would be helpful for the lower courts that will have to apply the standard in the future. See id.
By contrast, Vance argues that the Supreme Court should simply reverse the Seventh Circuit’s decision and remand the case. See Brief for Petitioner at 44. According to Vance, the district court should engage in a new round of fact-finding in order to better apply any new standard that the Supreme Court announces. See id. Vance notes that this is the Supreme Court’s usual practice, and the Court should not deviate from it here. See id.; see also Brief of United States at 32 (also noting that the Supreme Court typically remands cases for application of the standards that it announces).
In this case, the Supreme Court will resolve a circuit split on whether one must have the power to hire, fire, demote, promote, transfer, or discipline the victim of racial discrimination to qualify as a supervisor for purposes of employer liability under Title VII. As an alternative to this closed list, the Court may decide that the daily oversight of the victim’s work is enough to make one a supervisor under the statute. Both parties agree that this functional role may give rise to the very abuses that Title VII sought to combat. In addressing the realities of the workplace and their relevance to the statute, the Court’s decision has the potential to expand employers’ liability for the unlawful conduct of their employees.