Guest post by Professor Michael Foreman
"Let's say you have a work room. There are five people who work there. And the employer has a rule that the senior employee gets to pick the music that's going to play all day long. And the senior employee says to one of the other employees . . . if you don't date me, it's going to be country music all day long." Chief Justice Roberts barely let counsel for the employee, Maetta Vance, get 30 seconds into his argument before posing this hypothetical when the Court heard argument in Vance v. Ball State University on Monday, November 26th.
While the hypothetical is far removed from the facts of the case, it drives to the core of the issue: how much power over an employee must another employee have to be considered a “supervisor” to hold the employer liable for harassment under Title VII? If the harassment is by a supervisor the employer can be held strictly liable for the actions of supervisors – basically the supervisor’s actions are those of the employer. If the harassment is by a co-worker then the employer is only responsible if it is shown that the employer acted negligently – in other words the employer is only liable if it knew of the harassment and acted unreasonably in failing to prevent it. Since it is easier for an employer to defend cases of workplace harassment by a co-worker, determining whether a person is a supervisor is a key issue in many harassment cases.
In 1998, the Court in Faragher v. City of Boca Raton and Burlington Industries v. Ellerth defined the scope of vicarious liability in harassment cases when a supervisor is the harasser. The Court also provided the employer with an affirmative defense when the harassment does not result in a tangible employment action, such as hiring, firing, reassignment of significant duties, and promotions.
The Court’s analysis in Faragher and Ellerth raised an obvious question, and one the Court avoided. How much power does the employer need to give an employee before they should be considered a supervisor? In Maetta Vance’s case the Seventh Circuit decided that an employee could only be considered a supervisor if that employee was given the power to take a tangible employment action. By the time the case was briefed and argued it appeared that all the parties, including Ball State and most of the amici involved, agreed that the Seventh Circuit standard ignored the realities of the work place. This was a point that Justice Kagan drove home with her own hypothetical. “There's a professor, and the professor has a secretary. And the professor subjects that secretary to living hell, complete hostile work environment on the basis of sex, all right? But the professor has absolutely no authority to fire the secretary.” Justice Kagan’s questions showed the limited reach of the lower court focus on the ability to hire and fire as the measure of when someone was a supervisor. Deputy Solicitor General Sri Srinivasan readily conceded that the Seventh Circuit’s approach would not protect that secretary and no one seriously defended the lower court’s view as a correct rule of law.
While Chief Justice Roberts and Justices Alito and Scalia did not appear happy that the Seventh Circuit standard went undefended, their questions did not appear to signal that that they believed it was the correct one either. So it appears the Equal Employment Opportunity Commission standard offered by the Solicitor General and the amici briefs on behalf of Ms. Vance is the one in play.
The EEOC standard provides that employers are liable for employee actions where the harassing employee has the power to "direct the employee's daily work activities." The Solicitor General's brief and those supporting Ms. Vance argued that the standard adopted by the EEOC merely built upon the Faragher and Ellerth legal analysis and most accurately reflects today’s workplace. Now, back to the Chief Justice’s music playing harasser. His question was intended to measure how far this standard reaches – what does it mean to "direct the employee's daily activities." Is the power to play the music different than the power to have Maetta Vance Ball, as a kitchen worker, cut the onions – a hypothetical directly related to the case?
While Chief Justice Roberts’ hypothetical is intriguing, as a practical matter the Court has already provided the answer. In Faragher and Ellerth, the Court recognized that what aids in the harassment is the authority given by the employer to "bring the official power of the enterprise to bear." In such a situation, the empowered employees are no longer ordinary co-workers because they have been given authority by the employer to impact the work environment.
The EEOC standard urged by the SG, the Petitioner, and their supporting amici mirror the Court’s analysis of the vicarious liability issue. It explains the nature of the power that is needed. The authority must be of "sufficient magnitude to assist the harasser explicitly or implicitly in carrying out the harassment."
Applying this long-established rule would bring stability and predictability to this area of the law. In addition, it would promote self-regulation of harassment by companies, and avoid conflicting and confusing rules of law. It is important to note that, even though the EEOC definition of “supervisor” is met, the employer retains an affirmative defense, escaping liability if they can prove that they exercised reasonable care to prevent the harassment and that the employee failed to take advantage of preventative measures adopted by the employer.
While the rule may not protect employees from country and western music-playing-would-be harassers, the EEOC standard is a sensible and enforceable way of determining who is a supervisor. The Supreme Court should adopt that guidance as the rule of law.
Professor Michael Foreman directs Penn State's Civil Rights Appellate Clinic, which has served as counsel on numerous cases in United States Supreme Court and federal appellate counts. He argued Coleman v. Maryland Court of Appeals to the Supreme Court in 2012. Professor Foreman is frequently called upon to testify before Congress and the EEOC on the impact of the Supreme Court decisions affecting civil rights and employment issues. Prior to joining Penn State he was deputy director of Legal Programs for the Lawyers' Committee for Civil Rights Under Law. Professor Foreman was acting deputy general counsel for the U.S. Commission on Civil Rights, where he served as the lead attorney for the commission's investigation of the voting irregularities in the 2000 presidential election. A recipient of the Carnegie Medal for Outstanding Heroism, Professor Foreman has been honored by Shippensburg University with the Jesse S. Heiges Distinguished Alumnus Award. He was also selected by Harvard Law School to as a Wasserstein Fellow, which recognizes dedicated service in the public interest.