In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the United States Supreme Court decided that employers are vicariously liable for severe or pervasive workplace harassment on an employee by his or her supervisor. Currently, there is a circuit-split over who is a “supervisor” for the purposes of employer liability under Title VII. The Supreme Court will likely resolve this split as it granted certiorari in Vance v. Ball State University, et al. on June 25, 2012. The petitioner states that 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, as the First, Seventh, and Eighth Circuits have held (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.
Vance v. Ball State University, et al., is an appeal from the U.S. Court of Appeals for the Seventh Circuit. Vance was an African-American employee of Ball State University who alleged that various co-workers used offensive racial epithets when referring to her, engaged in physical altercations with her, bragged family members had ties to the Ku Klux Klan, and engaged in other physically and verbally threatening acts. Vance informed supervisors that she felt threatened and intimidated by co-workers and then proceeded to file a charge with the EEOC. In her charge, Vance alleged race, gender and age discrimination.
Several months later, Vance filed a complaint with Ball State against her supervisor that was investigated but found to have no factual basis. Vance also filed a second complaint with the EEOC against Ball State alleging retaliation. Vance later filed suit in federal district court alleging, among other claims, hostile work environment and retaliation claims based on violations of Title VII. The district court in this case granted summary judgment in favor of the defendant, Ball State.
On appeal, the Seventh Circuit addressed whether there was a basis for employer liability under Title VII. One of the ways in which Vance tried to show employer liability was through harassment allegedly inflicted by her supervisors. Under Title VII, an employer is strictly liable for harassment by supervisors. The court stated that a “supervisor” for the purposes of Title VII must be someone with “the power to hire, fire, demote, promote, transfer or discipline an employee.” The court decided that none of Vance’s alleged harassers fit under this definition of “supervisor” and instead considered them to be co-workers. Because the court considered Vance’s alleged harassers to be co-workers, Vance needed to show that Ball State was “negligent either in discovering or remedying the harassment” to prove employer liability under Title VII, which Vance could not do.
The Supreme Court is now set to decide whether the definition of “supervisor” for the purposes of Title VII employer liability is more limited, in line with the Seventh Circuit’s decision, or more expansive. If the Court takes the more expansive view, it would likely be easier for those such as Vance, who was allegedly harassed by those with authority to direct and oversee her work, to prove employer liability under Title VII.