• Title VII—Employer’s Vicarious Liability for Acts of Supervisor
  • June 30, 2012 | Author: Dan Himmelfarb
  • Law Firm: Mayer Brown LLP - Washington Office
  • Under Title VII of the Civil Rights Act of 1964, an employer may be held vicariously liable for a supervisor’s acts of workplace discrimination. The Supreme Court established the supervisor liability rule in a pair of 1998 cases, Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth., 524 U.S. 742 (1998). In a case of co-employee harassment, by contrast, employer liability requires a Title VII plaintiff to show more, such as that the employer was negligent in responding to the plaintiff’s complaints.

    On June 26, 2012, the Supreme Court granted certiorari in Vance v. Ball State University, No. 11-556, to decide whether the supervisor liability rule applies to harassment by those whom the employer vests with authority to direct and oversee the employee’s daily work or, instead, is limited to harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim. In granting certiorari, the Court rejected the recommendation of the Solicitor General, whose views the Court had solicited, that certiorari be denied.

    The Court’s decision in this case will be important—particularly to businesses with numerous employees—because it has the potential to expand dramatically the types of workplace harassment claims that can survive summary judgment.

    Petitioner Maetta Vance, the plaintiff below, was an African-American employee in respondent Ball State University’s catering department. A co-worker who had been given the authority to direct the work of several employees, including Vance, allegedly subjected Vance to severe and pervasive racial harassment. Vance sued the university under Title VII, asserting hostile environment and retaliation claims. The district court granted Ball State’s motion for summary judgment. It relied on Seventh Circuit precedent holding that, for purposes of an employer’s vicarious liability, “supervisor” status turned on “the power to hire, fire, demote, promote, transfer, or discipline an employee,” which was absent here. The Seventh Circuit affirmed.

    The scope of the supervisor liability rule has divided the courts of appeals. Like the Seventh Circuit, the First and Eighth Circuits have taken the position that only a supervisor’s power over formal employment status implicates the supervisor liability rule. The Second, Fourth, and Ninth Circuits, by contrast, have held that harassment by personnel overseeing the victim’s daily work assignments and performance warrants vicarious employer liability. The EEOC has also argued for the broader rule.

    Absent extensions, which are likely, amicus briefs in support of the petitioner will be due on August 16, 2012, and amicus briefs in support of the respondents will be due on September 17, 2012.