Under Title VII of the 1964 Civil Rights Act, the requirements for employer liability for harassment and the defenses available to the employer depend in part on whether the alleged harassment occurred between co-workers or between a supervisor and an employee. An employer in a co-worker harassment situation may avoid liability if the employer demonstrates that it took immediate and proper corrective action. However, when it comes to harassment by a supervisor, to avoid liability, the employer must demonstrate that it exercised reasonable care to prevent and rectify the harassing behavior, and that the employee unreasonably refused the preventive or corrective opportunities. In addition, the defense in a supervisor situation can be limited to situations where the unlawful harassment did not result in a tangible change in employment status, such as a firing or demotion. While the categories of harassment may be somewhat straightforward, it can be difficult to determine whether an individual is a supervisor and, accordingly, which standard will be applied to the employer.
In Vance v. Ball State University, the U.S. Supreme Court was asked to decide whether a supervisor is defined by the ability to directly affect employment status or by the less strict standard of directing at least some daily work activities. Maetta Vance claimed race, gender, and age harassment in her job as a caterer and kitchen worker for formal events at Ball State University. Vance was the only African American in her department and was allegedly subjected to racial slurs and threatening actions. Vance claimed that two supervisors were involved in the harassment. Vance’s first claim was against Kimes, who Vance believed treated other workers more favorably than she was treated. The District Court ruled that Kimes was a valid supervisor but that there was no evidence of unlawful harassment by Kimes.
The other claim was against Davis, who allegedly slapped Vance, threatened to physically attack her on another occasion, and engaged in a pattern of race-related insults. The District Court deemed this second claim to be unlawful harassment but not harassment by a supervisor because Davis did not have the ability to hire, fire, promote, demote, or otherwise directly impact Vance’s job status. Finding it to be a co-worker claim, the District Court determined that Ball State had a valid defense because it took immediate and proper corrective action following the harassment. Vance appealed and argued that Davis was her supervisor despite Davis’s inability to hire, fire, or otherwise directly affect Vance’s employment status. Rather, Vance argued Davis qualified as a supervisor because Davis had the authority to direct Vance’s day-to-day work activities. Specifically, Davis directed Vance on which kitchen activities she should perform.
The case made its way to the U.S. Supreme Court. In a 5-4 decision, the Supreme Court ruled that the more narrow definition of supervisor applied in Title VII cases. In doing so, the majority adopted the basic premise that a person is a supervisor “if he or she is empowered by the employer to take tangible employment actions against the victim.” In light of the decision in Vance, employers should carefully consider which of its employees will be permitted to decide upon and institute tangible employment actions involving other employees.
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