When is an employer responsible for workplace harassment perpetrated by one of its employees? Currently, the answer depends on where the employer is based, but with the Petition in Vance v. Ball State University, et al., the United States Supreme Court plans to settle that question on a nationwide basis.
The Supreme Court granted certiorari on June 25, 2012 in the Vance case, and oral arguments are scheduled for this fall. The Court’s ruling will have a significant impact on how U.S. employers manage and monitor their employees and middle managers.
The case begins with Maetta Vance, the only African-American employee in the Banquet and Catering Department at Ball State University, based in Muncie, Indiana. In 2005, Saundra Davis, an employee whom Ball State designated as a “supervisor,” was assigned to the Catering Department and given authority to direct Vance’s work. During a previous stint in the department, Davis had physically assaulted Vance. On one occasion, Davis cornered Vance in an elevator and referring to the earlier assault, told her, “I’ll do it again!” She also used racially charged epithets in addressing Vance, calling her “Buckwheat” and “Sambo.” Another white employee at Ball State used the term “n****r” to refer to Vance. As this behavior persisted, Vance lived and worked in a constant state of fear. She endured fits of anxiety and sleeplessness, for which she sought psychiatric treatment.
Vance sued her employer under Title VII of the Civil Rights Act, alleging race discrimination based on a hostile work environment. The question before the Court was whether the employer could be liable for the discriminatory conduct of a so-called “supervisor.” In this instance, the court decided that the employer could not be held liable and dismissed the case. The U.S. Court of Appeals for the Seventh Circuit affirmed the decision. This set up a multi-circuit disagreement on the issue of employer liability—an issue that has now captured the attention of the Supreme Court.
Employer's Responsibility Determined by Role of Harassing Employee
Here’s the legal issue: Twelve years ago, the U.S. Supreme Court decided two critical cases affecting employer liability for supervisor misconduct. 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 when an employee is subject to severe or pervasive sex-based or race-based workplace harassment and sues their employer under Title VII, the employer is vicariously liable for the discriminatory conduct of that employee’s “supervisor(s).” However, the Supreme Court held that an employer is responsible for the discriminatory conduct of the employee’s “co-workers” only if the worker subjected to the harassment could prove employer negligence.
The court had to determine Saundra Davis’s role—was she Ms. Vance’s “supervisor” or a mere co-employee? In the Vance decision, the Seventh Circuit held that harassment by a person designated as a “supervisor” by the employee, and who had the authority to direct and oversee the victim’s daily work, could not give rise to vicarious liability unless the harasser also had the power to hire, fire, demote, transfer or otherwise discipline the victim. Therefore, if Ms. Davis only had the power to manage Ms. Vance’s work and not the power to discipline her, then Ms. Davis was a co-employee and Ball State University could only be liable for the race-based workplace harassment if Ms. Vance proved the University’s negligence in handling the situation.
Different Circuits Reach Different Decisions
But that’s not the law in New York, Richmond or Los Angeles. In fact, the Second, Fourth and Ninth Circuits have held that the Faragher and Ellerth supervisor liability rule applies to harassment by those authorized by the employer to direct and oversee their victim’s daily work. The First, Seventh and Eighth Circuits (think Boston, Chicago, and Omaha), by contrast, believe that employer liability is limited to those harassers whose supervisory role includes the power to hire, fire, demote, promote, transfer or discipline their victim.
So, in the end, the answer regarding employer liability depends on where the case arises (where the employer is based, or where the acts of harassment occur). Until the Supreme Court hears arguments this fall and unifies the rule, employers will need to think twice about what power they afford their so-called “supervisors.”
About the Author
Mark S. Guralnick is the author of eight law books and hundreds of articles on diverse legal subjects. A practicing lawyer for nearly 30 years, Mr. Guralnick is board certified as a civil trial lawyer, an international law specialist, and a diplomate in professional liability law. He holds eight college degrees, including a Ph.D. (Temple University), for which he won the Bernard C. Watson Award, the highest commencement award conferred by the university for an outstanding dissertation; dual MBAs from Columbia University and the London Business School; two law degrees (J.D. and LL.M.), and master’s degrees in fine arts (Bennington College) and in public administration (Nova Southeastern University).
Mr. Guralnick has served on the faculties of many universities and colleges, including Rutgers University, University of Denver, Ramapo College, and the Pennsylvania State University. He is admitted to practice law before the United States Supreme Court, the U.S. Courts of Appeals for the 2nd, 3rd, 4th and District of Columbia Circuits, and numerous federal district courts. He is licensed to practice in the state courts of Massachusetts, New York, New Jersey, Florida, Kentucky, Pennsylvania, Michigan, Maryland, and Washington, D.C. He is also qualified as a solicitor of England, Wales and Scotland, and admitted as an attorney of the Commonwealth of the Northern Mariana Islands.
Employment Law. A Comprehensive Guide for the American Workplace, written by Mark S. Guralnick, provides a comprehensive treatment of the recruitment and hiring, management and discipline, compensation and termination of U.S. employees. Specific chapters are devoted to employer liability, employment discrimination, race and sex discrimination and the Civil Rights Acts.