The Supreme Court holds in a sexual harassment case that an employer is automatically liable for sexual harassment only if the harasser has authority to take tangible action against the victim, i.e., he has the power to hire, fire, promote, transfer or discipline her. This decision repudiates a decision of the Second Circuit that provided a more open-ended definition.
The case is Vance v. Ball State University, decided on June 24. In 1998, the Supreme Court held that the employer is liable for sexual harassment if a supervisor takes a tangible employment action against the harassment victim. The employer is also liable if a supervisor commits the harassment and plaintiff either failed to take advantage of the employer's preventative measures or management exercised reasonable care to prevent and promptly any harassing behavior. The question that makes all the difference is: who is a supervisor? If a "supervisor" commits the harassment, the plaintiff has a better chance to win the case.
Writing for a 5-4 majority, Justice Alito defines "supervisor" in the sexual harassment context. The Second Circuit's definition tracks the EEOC's approach, "which ties supervisor status to the ability to exercise significant direction over another's daily work." (The Second Circuit case is Mack v. Otis Elevator, 326 F.3d 116 (2d Cir. 2003)). The Supreme Court's conservative wing does not like this loose definition. Justice Alito instead says that a "supervisor" in Title VII sexual harassment cases is someone with authority to make tangible employment decisions: hire and fire, promote, demote and assign. It is not enough that a co-worker have some ability to tell others what to do.
The majority says that its strict holding flows from the Court's dual-1998 decisions, Faragher and Ellerth, which "contemplate a unitary category of supervisors, i.e., those employees with the authority to make tangible employment decisions. There is no hint in either decision that the Court had in mind two categories of supervision: 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." This approach, Justice Alito says, is "easily workable" and is better than the case-by-case approach advocated by the EEOC, which will "frustrate judges and confound jurors." Under this predictable approach, the parties at the outset of litigation will be in a better position to size up the case and be able to explore settlement possibilities. "Where this does not occur, supervisor status will generally be capable of resolution at summary judgment. By contrast, under the approach advocated by [plaintiff] and the EEOC, supervisor status would very often be murky."
Justice Ginsburg dissents on behalf of the four liberal justices. She writes, "the limitation the Court decrees diminishes the force of Faragher and Ellerth, ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation's workplaces. 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." She further states that the majority "exhibit[s] remarkable resistance to the thrust of our prior decisions,workplace realities, and the EEOC's Guidance, the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ. Trumpeting the virtues of simplicity and administrability, the Court restricts supervisor status to those with power to take tangible employment actions. In so restricting the definition of supervisor, the Court once again shuts from sight the 'robust protection against workplace discrimination Congress intended Title VII to secure.'"