Posted 06-12-2013

Any day now, a decision is expected from the United States Supreme Court which may have wide-ranging implications for the exposure of employers for harassment in federal harassment cases. At issue in the case is: How much authority is enough to be considered a supervisor?

In the important Supreme Court decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the Court held that the employer is always liable for harassment by supervisors, because of their authority. The employer can avoid liability only if it can prove that it had an effective anti-harassment policy in place, and that the victim unreasonably failed to take advantage of that policy (for example, by not using the reporting procedures outlined in the policy). By contrast, employers are liable for co-worker harassment only if the employee can prove that the employer was negligent in either discovering or remedying the offending behavior. That’s much harder to prove. Obviously, expanding the definition of who is a “supervisor” has significant implications for assessing potential employer liability.

Traditionally, a supervisor is defined to have the authority to hire, fire, promote, demote, transfer, etc., all material and significant impacts on an individual’s employment. The Seventh Circuit Court of Appeals, which issued the opinion on review before the Supreme Court, holds to that traditional definition, with which the First and Eighth Circuits agree. Based on that precedent, it dismissed Maetta Vance’s claim of racial harassment against Ball State University for the actions of Saundra Davis, because she did not have that kind of authority over Ms. Vance. (That the University investigated promptly and took prompt effective remedial action was not in dispute in the case, according to the Court and the parties. Another very interesting point about this case is that all parties also agree that the Seventh Circuit’s definition of “supervisor” is too narrow!)

Both Ball State and Ms. Vance argued that the appropriate standard to be used is that a “supervisor” is any individual who has authority to direct an alleged victim’s daily work activities. This is already the standard in the Second, Fourth, and Ninth Circuit Courts of Appeals, and in EEOC regulations. Even under that standard, though, Ball State argued to the Court that Ms. Davis did not have that kind of authority, and the lower court’s decision dismissing the case, even though based on an improper definition, should stand.

Vance v. Ball State University, 646 F.3d 461 (7th Cir. 2011), No. 11-556 cert granted 6/25/2011 with oral argument before the Supreme Court on 11/26/2012

What this means to you:

It seems likely that the United States Supreme Court will adopt the looser definition of “supervisor” advocated by the parties and already in place at the EEOC and several federal appeals courts, in the Second Circuit, which means that there will be no bright line definition of supervisor and that such determinations will have to be made on a case by case basis. Employers will not be able to rely solely on definitions, classifications, and/or titles, to determine which of its employees are “supervisors” (for whose actions there will be automatic liability) for purposes of federal harassment laws. The best defense to any claim of harassment, whether against a “supervisor” or co-worker, is to train your workforce on the law and your organization’s policies, have an experienced investigator investigate promptly, and then for management to take appropriate remedial action based on the findings of that investigation. And, as always, document thoroughly!

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.