• Are You My Supervisor?
  • July 24, 2013 | Author: Donald D. Berner
  • Law Firm: Foulston Siefkin LLP - Wichita Office
  • Possibly lost in the anticipation and coverage of the Supreme Court’s DOMA decision was the Court’s opinion in Vance v. Ball State University. Vance resolved a circuit split as to who qualified as a supervisor. The decision marked another win for employers as the Supreme Court adopted a narrow definition of supervisor.

    In Vance, an African-American employee filed a complaint with the EEOC claiming that she was harassed by co-workers with racial epithets, subjected to references to the Ku Klux Klan and threatened with physical harm under Title VII. Vance sued, claiming a hostile work environment, specifically alleging that her supervisor made her feel unwelcome; a co-worker called her a "porch monkey" and other racial epithets; and that a different supervisor made faces at her.

    Vance’s case turned on employer liability. She was able to establish the first three elements of a hostile work environment claim: (1) the work environment was objectively and subjectively offensive; (2) the conduct was based on race; (3) the conduct was severe and pervasive. But, the fourth and final element was key. Vance had to establish that a supervisor harassed her or her employer was negligent in discovering or addressing the situation.

    The Supreme Court affirmed the 7th Circuit’s ruling that Vance failed to establish employer liability. For purposes of determining vicarious liability under Title VII, the Supreme Court stated that an employee is only a supervisor if the employee is empowered by the employer to take tangible employment actions, i.e., to effect a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits” against the victim.  Because of this narrow definition, the Court found that all of the actions complained of by Vance were taken by her co-workers, not her supervisor.

    Vance matters because an employer’s liability for a hostile work environment is contingent upon whether the harasser is the employee’s supervisor or co-worker.  Under the affirmative defense standards from Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth, employers can be held strictly liable for harassment inflicted by “supervisors.”  But where the harassment is only committed by co-workers, the plaintiff must show that the employer has been negligent either in discovering or remedying the harassment.  Vance’s narrow definition of supervisors is a good thing for employers. It further restricts the number of employees that could open you up to strict liability and will require more plaintiffs to show negligence.