Under both California law and Title VII of the Civil Rights Act of 1964, your employer may be liable if you are harassed by either a co-worker or a supervisor. However, it is more difficult to hold an employer liable for harassment if the harasser is a co-worker, and easier if the harasser is a “supervisor.” Enter the United States Supreme Court in Vance v. Ball State University, unnecessarily tightening up who is a supervisor to allow employers to escape responsibility for harassment.
Title VII does not specifically define who is a “supervisor,” which has created some disagreement among the lower courts. Some courts determined that an employee is not a supervisor unless he or she has the power to “hire, fire, demote, promote, transfer, or discipline the victim,” while other courts follow the broader interpretation of supervisor which includes individuals who have “the ability to exercise significant discretion over [another employee’s] daily work.” While the difference may seem subtle, it is common in many workplaces for an employee to have a supervisor who tells them what to do on a daily basis but that person does not have the authority to hire, fire, or promote them.
This difference is particularly important for workers like Ms. Maetta Vance. Ms. Vance, an African American woman, worked as a catering assistant at Ball State University. She complained on several occasions that catering specialist, Saundra Davis, racially harassed her over a period of time. She also alleged that Ms. Davis was her supervisor, and therefore, the University was liable for the harassment.
Last week, in Vance v. Ball State University, the Supreme Court rejected Ms. Vance’s argument and held that an employer is only vicariously or strictly liable for supervisor harassment when “the employer has empowered that employee to take tangible employment actions against the victim, i.e. to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'”
This is a significant blow to employee rights under Title VII as it restricts employer liability in harassment cases. Based on this decision, under Title VII, if the person harassing you does not have the power to take a tangible employment action against you, such as hiring, firing, demoting, transferring or disciplining, the employer is not strictly liable.
Fortunately for California employees, not only do employers have a harder time escaping liability for supervisor harassment, but California law also has a more expansive definition of “supervisor” written into the law. Under the California Fair Employment and Housing Act, Govt. Code § 12926(s), supervisor is defined as:
“any individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively recommend that action…”
This more inclusive definition would have served Ms. Vance well had she been employed in California. In the coming months and years we will likely see whether employers seize on this opportunity to limit their liability in harassment cases. However, in California the protections under the Fair Employment and Housing Act are unchanged and will continue to protect workers from harassment by their supervisors, whether or not they have the power to take “tangible employment actions.” You can read the full opinion here.
July 9, 2013 Siegel, LeWitter & Malkani