In a major victory for employers, the Supreme Court in June ruled that, in Title VII cases, only someone with the power to take “tangible employment action” can be considered a supervisor. The Court’s decision in Vance v. Ball State will make it harder for employees to sue for supervisor bias, a claim that carries strict employer liability.
THE LAW: Most federal discrimination laws require employers to prevent or stop discrimination by supervisors. Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the ADA all bar discrimination and harassment by supervisors.
EEOC guidance states that supervisors are “anyone with authority to take tangible employment actions or direct the employee’s daily activities.” Many courts have limited the definition to those who can take tangible employment actions such as hiring, firing or promoting employees.
WHAT’S NEW: Maetta Vance, who is black, worked as a catering assistant at Ball State University. She complained regularly of problems with a white co-worker, Saundra Davis. Vance said Davis repeatedly blocked her access to elevators, stared at her and engaged in other behavior that Vance described as “weird.”
Supervisors attempted to end the bickering, but their efforts didn’t satisfy Vance. She complained to the EEOC. When the case went to court, both sides moved for summary judgment and the court sided with Ball State, noting that Davis was not Vance’s supervisor. Therefore, it said, the university was not responsible for her actions.
Vance appealed to the 7th Circuit, which also sided with the university. Vance appealed to the Supreme Court, which also ruled that Davis was not Vance’s supervisor under Title VII.
HOW TO COMPLY: In a 5-4 decision, the Supreme Court rejected the EEOC’s flexible approach that attempted to evaluate each situation individually to determine who is a supervisor. The majority harkened back to the landmark sexual harassment cases—Burlington Industries v. Ellerth and Faragher v. Boca Raton.
Under those cases, employers enjoyed a safe harbor if they did not permit harassment and corrected it when it did occur. The Vance decision reinforces that scheme, but also makes it clear employers need a bright line that divides co-workers from supervisors.
Clear lines of command
Generally speaking, employees who cannot hire, fire and promote are not supervisors. However, employers must watch against a type of mission creep in which trusted employees are given more and more responsibilities, in effect becoming supervisors.
All employees should know whether they have the authority to hire and fire those with whom they work.
Employers that employ 360-degree feedback or seek out employee opinions about hiring could still run afoul of the narrow supervisor definition. For example, if a 360-degree feedback evaluation is used to determine raises, promotions or even firings, an evaluating employee may meet the definition of a supervisor. Employers should leave the hiring, firing and promoting to the real managers and make sure co-worker input is weighted accordingly.
Your organizational chart should clearly show lines of authority that designate who is a supervisor. Make sure supervisors understand which employees they manage.
Training more important than ever
Train supervisors how to handle discrimination and harassment complaints and how to avoid retaliating against workers who file complaints. The Burlington/Faragher framework requires employers to have at least two avenues for employees to file complaints. That way, an employee who perceives harassment from a direct supervisor has someone else to complain to.
Once bias or harassment is reported, investigate the charges quickly and professionally.
Don’t be complacent
While this Supreme Court decision was a win for employers, this is no time to let your guard down. Review your training, policies and procedures to ensure you are ready when the next complaint comes in.
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