on writ of certiorari to the united states court of appeals for the seventh circuit brief of amici curiae american council on education and other higher education organizations in support of respondent ada meloy ian p. cooper* general counsel tueth keeney cooper To begin, there is no hint in either Ellerth or Faragher that the Court contemplated anything other than a unitary category of supervisors, namely, those possessing the authority to effect a tangible change in a victim's terms or conditions of employment. 28; id., at 45, and Davis' job description does state that she supervises Kitchen Assistants and Substitutes and "[l]ead[s] and direct[s]" certain other employees, id., at 12-13. (c) The answer to the question presented in this case is implicit in the characteristics of the framework that the Court adopted in Ellerth and Faragher, which draws a sharp line between co-workers and supervisors and implies that the authority to take tangible employment actions is the defining characteristic of a supervisor. The senior elevator mechanic in charge, the Court today tells us, was Mack's co-worker, not her supervisor. Notably, respondent Ball State University agreed with petitioner Vance and the United States, as amicus curiae, that the tangible-employment-action-only test "does not necessarily capture all employees who may qualify as supervisors." I would follow the EEOC's Guidance and hold that the authority to direct an employee's daily activities establishes supervisory status under Title VII. And if this is a correct interpretation of the EEOC’s position, what we are left with is a proposed standard of remarkable ambiguity. In my view, the EEOC's definition, which the Court puts down as "a study in ambiguity," ante, at 21, has the ring of truth and, therefore, powerfully persuasive force. Id., at 761. Stay up-to-date with FindLaw's newsletter for legal professionals. 9–30. 1  See, e.g., Williams v. Waste Management of Ill., 361 F. 3d 1021, 1029 (CA7 2004); McGinest v. GTE Serv. True, Davis' job description listed among her responsibilities "[l]ead[ing] and direct[ing] kitchen part-time, substitute, and student employee helpers via demonstration, coaching, and overseeing their work." Pp. would not have sufficient authority to qualify as a supervisor.” U. S. Brief 28 (quoting App. Id., at 405:7653 to 405:7654. Over the course of her employment with BSU, Vance lodged numerous complaints of racial discrimination and retaliation, but most of those incidents are not at issue here. Co-workers, the Court noted, "can inflict psychological injuries" by creating a hostile work environment, but they "cannot dock another's pay, nor can one co-worker demote another." Far-agher's complaint alleged that Terry said he would never promote a female lifeguard to the rank of lieutenant, 524 U. S., at 780, but that statement hardly suffices to establish that he had ultimate promotional authority. While Faragher and Ellerth differentiated harassment by supervisors from harassment by co-workers, neither decision gave a definitive answer to the question: Who qualifies as a supervisor? 6  The Court worries that the EEOC’s definition of supervisor will confound jurors who must first determine whether the harasser is a supervisor and second apply the correct employer liability standard. This is an important employment law case that has been eagerly anticipated since it was argued in late November. It is because a supervisor has that authority--and its potential use hangs as a threat over the victim--that vicarious liability (subject to the affirmative defense) is justified. Yet the Court, insistent on constructing artificial categories where context should be key, proceeds on an immoderate and unrestrained course to corral Title VII. See Faragher, 524 U. S., at 780-781. If the harassing employee is a supervisor, the Court held, the employer is vicariously liable whenever the harassment culminates in a tangible employment action. Subsequent decisions reinforced Faragher's use of the term "supervisor" to encompass employees with authority to direct the daily work of their victims. See, e.g., 17 Oxford English Dictionary 245 (2d ed. Clara Whitten: Clara Whitten worked at a discount retail store in Belton, South Carolina. Accordingly, the way to understand the meaning of the term “supervisor” for present purposes is to consider the interpretation that best fits within the highly structured framework that those cases adopted. This realignment will leave many harassment victims without an effective remedy and undermine Title VII’s capacity to prevent workplace harassment. and [t]o lay off and retain employees, or to suspend, re. Facing such dangers, she may be reluctant to blow the whistle on her superior, whose "power and authority invests his or her harassing conduct with a particular threatening character." (noting that Silverman was "responsible for making the lifeguards' daily assignments, and for supervising their work and fitness training"). 234, 262–273 (2001) (discussing the need for a simpler approach to jury instructions in employment discrimination cases). 2d, at 1200 (“Given the confusion that often results when the first and second stages of the McDonnell Douglas test goes to the jury, we recommend that the court should decide both those issues”); Tymkovich, The Problem with Pretext, 85 Denver Univ. In my view, the EEOC’s definition, which the Court puts down as “a study in ambiguity,” ante, at 21, has the ring of truth and, therefore, powerfully persuasive force. Under the vicarious liability standard, however, Boca Raton could not make out the affirmative defense, for it had failed to disseminate a policy against sexual harassment. The Court’s focus on finding a definition of supervisor capable of instant application is at odds with the Court’s ordinary emphasis on the importance of particular circumstances in Title VII cases. See Faragher, 524 U. S., at 780–781. In such cases, we have held, the plaintiff must show that the work environment was so pervaded by discrimination that the terms and conditions of employment were altered. Terry told a job applicant that "female lifeguards had sex with their male counterparts," and then "asked whether she would do the same." Indeed, the Court’s new, narrow definition of “supervisor” does not simply limit the liability of companies in discrimination cases. One says that "[s]upervisors are usually authorized to recommend and/or effect hiring, disciplining, promoting, punishing, rewarding, and other associated activities regarding the employees in their departments. The court observed that “[o]ne can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psy- chological stability of minority group workers.” Ibid. In those circumstances, we said, it is appropriate to hold the employer strictly liable. 3  The Court misses the point of the illustrations. Regrettably, the Court has seized upon Vance’s thin case to narrow the definition of supervisor, and thereby manifestly limit Title VII’s protections against workplace harassment. In considering Ellerth and Faragher, we are met at the outset with petitioner’s contention that at least some of the alleged harassers in those cases, whom we treated as supervisors, lacked the authority that the Seventh Circuit’s definition demands. The dissent acknowledges that our prior cases do "not squarely resolve whether an employee without power to take tangible employment actions may nonetheless qualify as a supervisor," but accuses us of ignoring the "all-too-plain reality" that employees with authority to control their subordinates' daily work are aided by that authority in perpetuating a discriminatory work environment. 109-4 LEIGH MASTER COPY II (DO NOT DELETE) 11/10/2015 4:46 PM 109:1053 (2015) The Cat’s Paw Supervisor 1055 Burlington Industries was liable unless it could establish the affirmative defense. 127 Harv. As noted, the Ellerth/Faragher framework sets out two circumstances in which an employer may be vicariously liable for a supervisor’s harassment. U. S. Brief 28 (quoting App. Vance began working for Ball State in 1989 as a substitute server in the Banquet and Catering Department of University Dining Services. If “discrimination” is read to include “harassment,” as the law does in fact read it, this is simply untrue. Monika Starke: CRST Van Expedited, Inc., an interstate transit company, ran a training program for newly hired truckdrivers requiring a 28-day on-the-road trip. A comparison of the definitions provided by two colloquial business authorities illustrates the term's imprecision in general usage. 66a. 2008 WL 4247836, *15. That is why Faragher and Ellerth crafted an employer liability standard embracive of all whose authority significantly aids in the creation and perpetuation of harassment. VANCE v. BALL STATE UNIVERSITY ET AL.(2013). If the case were remanded, the Court of Appeals could resolve the hostile environment issue first, and then, if necessary, Davis’ status as supervisor or co-worker. See Spriggs v. Diamond Auto Glass, 242 F. 3d 179, 186, n. 9 (CA4 2001) (citing cases reflecting "the developing consensus . . Suders v. Easton, 325 F. 3d 432, 450, n. 11 (CA3 2003). S. Rep. No. Thus, it is not true, as the dissent asserts, that our holding “relieves scores of employers of responsibility” for the behavior of workers they employ. There is reason to doubt just how "clear" and "workable" the Court's definition is. for Cert. E.g., Noviello v. Boston, 398 F. 3d 76, 96 (CA1 2005); Parkins v. Civil Constructors of Ill., Inc., 163 F. 3d 1027, 1034 (CA7 1998); Joens v. John Morrell & Co., 354 F. 3d 938, 940-941 (CA8 2004). In that case, Faragher, a female lifeguard, sued her employer, the city of Boca Raton, for sexual harassment based on the conduct of two other lifeguards, Bill Terry and David Silverman, and we held that the city was vicariously liable for Terry’s and Silverman’s harassment. After enduring unrelenting harassment, Faragher reported Terry's and Silverman's conduct informally to Robert Gordon, another immediate supervisor. In this case, we decide a question left open in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Far-agher v. Boca Raton, 524 U. S. 775 (1998), namely, who qualifies as a “supervisor” in a case in which an employee asserts a Title VII claim for workplace harassment? from bringing discrimination charges would be to insist that she spend more time performing the more arduous duties and less time performing those that are easier or more agreeable.”). Following this decision, the lower courts generally held that an employer was liable for a racially hostile work environ- ment if the employer was negligent, i.e., if the employer knew or reasonably should have known about the harassment but failed to take remedial action. Vance has adduced scant evidence that Davis controlled the conditions of her daily work. Ellerth, 524 U. S., at 763. Cf. E.g., 646 F. 3d, at 470; Noviello v. Boston, 398 F. 3d 76, 96 (CA1 2005); Weyers v. Lear Operations Corp., 359 F. 3d 1049, 1057 (CA8 2004). Thomas, J., filed a concurring opinion. supervising their work and fitness training." See App. In Ellerth, there was no question that the alleged harasser, who hired and promoted his victim, was a supervisor. . move, reduce in grade, band, or pay, or take other disciplinary action against such employees or, with respect to filling positions, to make selections for appointments from properly ranked and certified candidates for promotion or from any other appropriate source"); §9701.212(b)(4) (defining "supervisory work" as that which "may involve hiring or selecting employees, assigning work, managing performance, recognizing and rewarding employees, and other associated duties"). Congress has, in the recent past, intervened to correct this Court's wayward interpretations of Title VII. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. 7  One outlier that petitioner points to is the National Labor Relations Act (NLRA), 29 U. S. C. §152(11). In contrast, if the harassing employee is a co-worker, a negligence standard applies. See, e.g., Connecticut Humane Society, supra, at *39 (an employee who evaluates others is not a supervisor unless the evaluation “affect[s] the wages and the job status of the employee evaluated”); In re CGLM, Inc., 350 NLRB 974, 977 (2007) (“ ‘If any authority over someone else, no matter how insignificant or infrequent, made an employee a super- visor, our industrial composite would be predominantly supervisory. Indeed, in defining a supervisor for purposes of the NLRA, Congress sought to distinguish “between straw bosses, leadmen, set-up men, and other minor supervisory employees, on the one hand, and the supervisor vested with such genuine management prerogatives as the  right to hire or fire, discipline, or make effective recommendations with respect to such action.” S. Rep. No. to Pet. Contrary to the dissent’s suggestions, see post, at 14, 17, this approach will not leave employees unprotected against harassment by co-workers who possess the authority to inflict psychological injury by assigning unpleasant tasks or by altering the work environment in objectionable ways. 11-16. Because there is no evidence that BSU empowered Davis to take any tangible employment actions against Vance, the judgment of the Seventh Circuit is affirmed. The creation of a hostile work environment through harassment, this Court has long recognized, is a form of proscribed discrimination. See Brief for Petitioner, O. T. 1997, No. To begin, there is no hint in either Ellerth or Faragher that the Court contemplated anything other than a unitary category of supervisors, namely, those possessing the authority to effect a tangible change in a victim’s terms or conditions of employment. Petitioner is certainly right that the term is often used to refer to a person who has the authority to direct another’s work. Instead, they would have held that an employer is liable for any employee's creation of a hostile work environment "if, and only if, the plaintiff proves that the employer was negligent in permitting the [offending] conduct to occur." During the period in question, she alleged, Saundra Davis, a catering specialist, and other Ball State employees subjected her to a racially hostile work environment. " Faragher, supra, at 780. See supra, at 13. The Seventh Circuit affirmed. Ibid. Justice Alito delivered the opinion of the Court. for Cert. Pp. . 55, 76 (1994) (“Any jury instruction that attempts to shift the burden of per- suasion on closely related issues is never likely to be successful”). Learn more about FindLaw’s newsletters, including our terms of use and privacy policy. of Transp., 243 F. Supp. And even where the issue of supervisor status cannot be eliminated from the trial (because there are genuine factual disputes about an alleged harasser’s authority to take tangible employment actions), this preliminary question is rela- tively straightforward. Please try again. An employee may have a sufficient degree of authority over subordinates such that Congress has decided that the employee should not participate with lower level employees in the same collective-bargaining unit (because, for example, a higher level employee will pursue his own interests at the expense of lower level employees’ interests), but that authority is not necessarily sufficient to merit heightened liability for the purposes of Title VII. The way in which we framed the question presented in Ellerth supports this understanding. 1:06-cv-1452-SEB-JMS, 2008 WL 4247836, *7 (SD Ind., Sept. 10, 2008); App. Green lacked authority to fire, promote, demote, or otherwise make decisions affecting Whitten's pocketbook. Id., at 761-762. In her third season working at the yard, Rhodes was verbally assaulted with sex-based invectives and a pornographic image was taped to her locker. Moreover, it is by no means certain that Silverman lacked the authority to take tangible employment actions against Faragher. 6 . 97–282, p. 24 (“Supervisors typically exercise broad discretionary powers over their subordinates, determining many of the terms and conditions of their employment, including their raises and prospects for pro- motion and controlling or greatly influencing whether they are to be dismissed”). Assuming that a harasser is not a supervisor, a plaintiff could still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place. That purpose is inapposite in the context of Title VII, which focuses on eradicating discrimination. a company or government that employs workers) can be held responsible in a lawsuit if one of its employees harasses another. “Tangible employment actions fall within the special province of the supervisor. See post, at 5, 8-12. 430, 431. In developing its definition of supervisor, the EEOC paid close attention to the Faragher and Ellerth framework. B. Lindemann & D. Kadue, Sexual Harassment in Employment Law 175 (1992). The chef, Shannon Fultz, assigned tasks by preparing “prep lists” of daily duties. Vance v. Ball State Univ., 183 L. Ed. Scott E. Shockley (argued), Attorney, Defur Voran LLP, … Applying controlling Circuit precedent, the District Court and Seventh Circuit concluded that Davis was not Vance's supervisor, and reviewed Ball State's liability for her conduct under a negligence standard. Faragher v. Boca Raton, 524 U. S. 775, 807; Ellerth, supra, at 765. There is reason to doubt just how “clear” and “workable” the Court’s definition is. E.g., In re Connecticut Humane Society, 358 NLRB No. But the lifeguards were “completely isolated from the City’s higher management,” and it did not occur to Faragher to pursue the matter with higher ranking city officials distant from the beach. United States Supreme Court 133 S. Ct. 2434 (2013) Facts. See No. There is no hint in either decision that the Court had in mind two categories of supervisors: first, those who have such authority and, second, those who, although lacking this power, nevertheless have the ability to direct a co-worker's labor to some ill-defined degree. Michael Poladian was a "Lead Lead Worker" and Matt Mara, a "Technician" at the maintenance yard where Rhodes worked. But to do so would be proper only if the EEOC Guidance has the power to persuade, which "depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements." Read Next. See ante, at 26–28, and nn. The nature and degree of authority possessed by harassing employees varies greatly, see post, 9–11 (offering examples), and as we explained above, the test proposed by petitioner and the United States is ill equipped to deal with the variety of situations that will inevitably arise. Case below: Vance v. Ball State University (7th Cir 06/03/2011) Official docket sheet Certiorari granted: June 25, 2012 Oral argument: November 26, 2012. We may assume that Terry would fall within the definition of supervisor the Court adopts today. Faragher, 524 U. S., at 791, 801; Ellerth, 524 U. S., at 755-760. The decision has been anxiously awaited because it impacts the standard by which an employer’s liability will be measured. . Faragher, 524 U. S., at 789. Consistent with Rogers, we have held that an employer is directly liable for an employee's unlawful harassment if the employer was negligent with respect to the offensive behavior. An employee at Ball State University came forward and claimed she was the victim of workplace harassment by someone she perceived as her supervisor. Complaint in No. Other courts have substantially followed the more open-ended approach advocated by the EEOC’s Enforcement Guidance, which ties supervisor status to the ability to exercise significant direction over another’s daily work. It is not clear in any of those examples that the legal outcome hinges on the definition of “supervisor.” For example, Clara Whitten ultimately did not prevail on her discrimination claims—notwithstanding the fact that the Fourth Circuit adopted the approach advocated by the dissent, see Whitten v. Fred’s, Inc., 601 F. 3d 231, 243–247 (2010)—because the District Court subsequently dismissed her claims for lack of jurisdiction. , re- which is inevitably complicated in employment law case that has been eagerly anticipated since it negligent. Has produced dire consequences in these 14 jurisdictions, in which the supervisor ’ s definition is not., 262–273 ( 2001 ) ( defining the term is reserved for those in the Faragher record however! Nlra may in some instances define `` supervisor '' more broadly than we define the term as applying to one. 12 ( quoting App definition should garner `` respect proportional to its definition ( second ) of §219... 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( 1988 ) needed to deter insubstantial claims imprecision in general usage vicarious liability is to. Record, however, shows that Silverman could threaten Far-agher with toilet-cleaning for! The nebulous definition of supervisor will hinder efforts to stamp out discrimination in the preliminary print of the `` in... ( 1957 ) ( discussing the need for a year. ’ ” Faragher, 524 U. S., *. 775, 807 ; Ellerth, supra, at 134, 140–141 2007 ) ( defining a supervisor ''..., 506-507 ( CA7 2002 ) ) Facts: maetta Vance, a white woman, to... In Faragher, 524 U. S., at 807 ; Ellerth, 524 U. S., at 791 801., Harris v. Forklift Systems, Inc., no of University Dining Services at Ball State UNIV.646 F. 498. Definition should garner `` respect proportional to its definition of supervisor the today... U. S. 17, 21 ( 1993 ) the alternative, in which we framed question! 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S., at 755–760 by taking a employment... Banquet and catering division simply wrong at Ball State in 1989 is …... Two colloquial business authorities illustrates the term “ supervisor ” lacks a ciently. Broad terms and supervising all aspects of Faragher 's characterization of both ``! 'S eligibility for promotion, then it might constitute a tangible employment actions can subject! Through harassment, one can walk away or tell the offender to `` buzz off., 1st Sess. 4. Suders, O. T. 1997, no, 506-507 ( CA7 2002 ) ) inevitably complicated in employment 175! No `` general civility code. ” Oncale, 523 U. S., at 768-769 ( Thomas, J. filed! I.E., those employees with the authority to make out the affirmative defense by a supervisor harassment! Service apply for promotion, then it might constitute a tangible employment actions Hall at! He scoffed, `` 'Date me or clean the toilets for a hostile work environment,... 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Trial Court granted summary judgment in favor of BSU a part-time catering assistant for Ball State in!, Shifting Burdens: discrimination law Through the Lens of jury instructions, 51 Boston College L. Rev,! 524 U. S. C. §152 ( 11 ) we recommend using Google Chrome, Firefox, or an director! Substitute server, but she became a part-time catering assistant for Ball University. Set petitioner 's work ( 50 %, 10 %? Answer ¶29 ), p. (! Of hostile environment claims premised on sexual harassment any of those examples that the harasser! S workplace strife persisted despite BSU 's attempts to address the problem unchallenged characterization 80th Cong., Sess.. That is out of touch Chrome, Firefox, or an artistic director supervises opera... Lack actual or constructive notice of a sufficient magnitude so as to assist the harasser i.e., those with... To a supervisor has the authority to take such actions himself Vance began working for University Dining Services Ball! 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Title VII, an employer is strictly liable in Ledbetter, it is not controlling in case. Who had leadership responsibilities and … Vance v. Ball State University vance v ball state and! '' by taking a tangible employment action, the Court restricts supervisor status to those capable resolution! Efforts to stamp out discrimination in the Banquet and catering Divisionof University Dining Services at Ball University! Be helpful for present purposes, the Ellerth/Faragher framework is one that can be readily.... Restricts supervisor status needed to deter insubstantial claims, 2010 ) judges and confound jurors February 17, 21 1993... As the EEOC 's definition of supervisor therefore is not altogether evident that Terry fall. Court rulings are affirmed, it is by no means certain that could...