In addition to the marriage cases, Hollingsworth v. Perry and United States v. Windsor, the US Supreme Court heard a number of cases dealing with discrimination. One such case was Vance v. Ball State University. In Vance, Maetta Vance sued her employer claiming continual harassment on the basis of her race by her alleged supervisor, Saundra Davis. The key question posed in this case was whether Davis was, in fact, Vance’s supervisor because Title VII of the Civil Rights Act of 1964 has been interpreted to expose employers to different liability depending on whether the harasser is a coworker or a supervisor. Justice Alito, writing for the majority, answered this question with a pro-employer definition of “supervisor” based on ease of application rather than workplace realities. When did clarity and simple application become the main concern of our Supreme Court Justices in constructing standards?
Under Title VII of the Civil Rights Act of 1964, it is illegal for an employer to discriminate against an employee on the basis of that employee’s race, color, religion, sex, or national origin. This prohibition was quickly expanded to include perpetuating or creating a discriminating work environment, such as that created by pervasive harassment. Two different degrees of employer liability have arisen with respect to harassment by coworkers and harassment by supervisors. If the harasser is a coworker, the employer is only liable if it knew or should have known of the harassment and failed to act to prevent it. In other words, it is not enough that harassment took place – the employer must have known about it and failed to prevent it. Meanwhile, if the harasser is a supervisor, the employer is always liable if “tangible employment action” was taken (e.g. hiring, firing, promoting, demoting, etc.). Even if tangible action was not taken, the employer is always liable for harassment by a supervisor unless the employer can prove they acted reasonably in taking steps to prevent the harassment or that the victim did not utilize reporting methods available to him or her.
In Vance, the Supreme Court considered two different definitions of supervisor. The first was taken from the Equal Employment Opportunity Commission’s (EEOC) guidance which says that a person is a supervisor if they have more than occasional control over an employee’s day-to-day activities. The other definition, which the majority ultimately applied, is narrower and much more restrictive. This definition says that a supervisor is someone empowered by the employer to take those “tangible employment actions” against the harassment victim. Thus, despite having a job title that implied power over Vance and actually having control over her daily activities, Saundra Davis was found to not be Vance’s supervisor under Title VII because she did not have the power to hire, promote, demote or fire her. This pro-employer majority, consisting of Justices Alito, Roberts, Scalia, Kennedy and Thomas, seems to set a new standard whereby a person must have the ability to cause “direct economic consequences” to an employee to be considered a supervisor.
Justice Ginsberg, dissenting for herself and Justices Breyer, Sotomayor and Kagan, rightly raised the concern that employers will now try to insulate themselves from Title VII liability by concentrating the power to make “tangible employment actions” in just a handful of high-level supervisors. There will be less incentive for employers to give anti-discrimination training to employees who “merely” have control over their subordinates’ work activities and schedules. Even Ball State University, the respondent in this case, conceded that the strict definition fails to cover many employees who might qualify as supervisors. In a rare move, the dissent calls on Congress to overrule the majority with new legislation, as it has done before with the Lily Ledbetter Fair Pay Act of 2009 and the Civil Rights Act of 1991. To quote Justice Ginsberg, “The ball is once again in Congress’ court to correct the error into which this court has fallen.” The EEOC received almost 100,000 discrimination complaints in 2012. With this decision we see a weakening of Title VII – legislation that provides important workplace protections to a wide range of workers. Limiting the ability of these claimants to find recourse, as this narrow definition does, is a grave injustice. It is now very important for employees to make themselves aware of who their actual supervisor is under this new definition and what harassment reporting procedures are in place at their place of work.