Supreme Court Clarifies Employer Liability for Supervisor Harassment Under Title VII

On June 24, 2013, the United States Supreme Court held, in Vance v. Ball State University, that an employee is a "supervisor" for purposes of vicarious liability for unlawful harassment under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim. The issue decided in Vance was one that was left open some fifteen years ago in the Supreme Court's decisions in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v. Boca Raton, 524 U. S. 775 (1998).

In each of those cases, the plaintiff contended that the action taken by individuals created a hostile work environment based on sex and sought to hold the employers vicariously liable for the acts of those individuals. Taken together, Ellerth and Faragher establish a two-part standard to imposing liability on an employer for harassment under Title VII, depending on the harasser's status in the company. If the harassing employee is the victim's co-worker, an employer is liable only if the employer knew or should have known of the conduct and failed to take appropriate action to stop it. If, however, the harasser is a supervisor, the Supreme Court concluded in Ellerth or Faragher that employer liability is in part a function of what happened to the victim. If the supervisor's harassment culminated in a tangible employment action taken against the victim, then the employer is strictly liable (vicariously liable) for the supervisor's harassment.

On the other hand, if there was no tangible employment action taken, the employer may escape liability by establishing an affirmative defense, which has two components: (1) the employer exercised reasonable care to prevent and correct any harassing behavior, and (2) that the victim unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. As the Court's majority opinion in Vance recounts, the defendants in neither Ellerth nor Faragher disputed the fact that the individuals taking the challenged actions were supervisors. So, the Supreme Court did not have to flesh out what it would take to be a supervisor in those 1998 cases. Various circuit courts of appeals have, since 1998, used different standards and come to different conclusions.

The Eighth Circuit, which covers Iowa, in Joens v. John Morrell & Co., 354 F.3d 938 (8th Cir.2004) adopted the standard that to be considered a supervisor for purposes of Title VII liability, "the alleged harasser must have had the power (not necessarily exercised) to take tangible employment action against the victim, such as the authority to hire, fire, promote, or reassign to significantly different duties." EEOC "Guidance" rejected; the Vance opinion resolves the question. Specifically rejecting what it called the "nebulous definition of a 'supervisor' advocated in the EEOC" "Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors," the Supreme Court's majority in Vance "and the Court is split 5 to 4" requires that for the employer to be liable for a supervisor's harassment, the employer must have empowered the supervisor to take tangible employment actions against the victim --meaning the supervisor must be able 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."

The Supreme Court's newly announced standard is the same as the Eighth Circuit's current precedent, so Vance presents no change for Iowa employers. Applying this standard to the facts presented in Vance, the Supreme Court held that one of Vance's alleged harassers, Saundra Davis, was not a "supervisor." Although Davis gave Vance some direction in her work, and Davis did not clock in and out like other hourly employees, she did not have authority to take formal employment actions for or against Vance, such as hiring, disciplining, or firing. In footnote 7 of the Supreme Court majority's opinion in Vance, there is a discussion who is considered a "supervisor" per the National Labor Relations Act, 29 U. S. C. §152(11). While the plaintiff in Vance was apparently seeking a definition of "supervisor" for purposes of Title VII that was even broader than that in the NLRA, not only did the Vance majority reject that approach, it acknowledged that the National Labor Relations Board has, in recent times, interpreted the NLRA's statutory definition of supervisor more narrowly than its plain language might permit." While it has been instructive to seek the conflict between a person being a supervisor for purposes of Title VII liability but not a supervisor for purposes of the NLRA, we are instructed  and employers are reminded -- that, "the concept of a supervisor varies from one legal context to another."

Finally, it is important to note that individual supervisors are not personally and individually liable for their own harassment or discrimination under Title VII, and that the Vance opinion's standard for "supervisory" liability is one that determines when the employer can be held liable for the acts or omissions of its supervisors. Iowa law is different with regard to who can be liable for employment harassment and discrimination. Iowa employers are reminded that while only employers are liable for harassment and discrimination under Title VII, the Iowa Civil Rights Act, at Section 216.6, provides that it is an unfair or discriminatory employment practice for any person to discriminate (or harass) on any of the bases listed in the statute. In Vivian v. Madison, 601 N.W. 2nd 872, the Iowa Supreme Court determined that by using the term "person" as well as "employer" in Section 216.6(1), the legislature demonstrated a clear intent to hold a "person" subject to liability under the law separately and apart from the liability imposed on an "employer."  

For any questions regarding harassment or employment law  please contact Russ Samson. 

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

- Russ Samson