Argument preview: Who is a supervisor?
At 11 a.m. next Monday, the Supreme Court will hold one hour of oral argument on a case seeking a clear definition of who is a workplace supervisor, under federal anti-discrimination law. The case is Vance v. Ball State University (docket 11-556). Arguing for kitchen employee Maetta Vance will be Daniel R. Ortiz of Charlottesville, Virginia, a University of Virginia law professor. He will have twenty-five minutes at the lectern. Arguing for Ball State University, and also with twenty-five minutes of time, will be Gregory G. Garre of the Washington, D.C., office of Latham & Watkins. Arguing between them with ten minutes of time will be Deputy U.S. Solicitor General Sri Srinivasan. The government supports Vance’s argument about who is a supervisor, but argues that Vance herself does not qualify to make that argument.
The Supreme Court has been trying since at least 1998 — not altogether successfully — to sort out who qualifies as a supervisor, under the nation’s most important workplace discrimination law, Title VII of the 1964 Civil Rights Act. There is a sharp disagreement among lower federal courts on how to interpret what the Justices have said about that, so now the Court is returning to try again. The case may not be a true test case, though, since the federal government has twice taken the position that the female worker who brought the case may not have identified anyone who actually serves as her supervisor in her kitchen job at Ball State University in Muncie, Indiana.
Title VII is simple enough: it forbids employers from practicing gender and race discrimination in their workplaces, and from doing so through their “agents.” In 1998, in two cases, the Supreme Court attempted to define who, as an on-the-job supervisor, could be treated as the employer’s agent. Those decisions came in Farragher v. City of Boca Raton and Burlington Industries Inc. v. Ellerth. Those rulings established that, under traditional legal theory on who acts as an “agent,” an employer could be held to blame legally under Title VII if an employer acting as a supervisor engaged in discrimination, such as sexual harassment.
The theory behind this substitute liability for the employer is that a worker who is the victim of workplace bias is less likely to challenge a supervisor than a fellow employee, because of what the supervisor might do in response. So, the theory goes, the supervisor’s rank contributes to the discrimination on behalf of the employer. A mere fellow employee’s biased actions toward a victim, though, is not to be blamed on the employer, unless the employer was negligent about what was happening in the workrooms.
The disagreement among federal appeals courts on this issue is also simple to describe: in this new case now at the Supreme Court, the Seventh Circuit Court ruled that a supervisor only means a person who has the actual authority to take a specific workplace action — such as hiring, firing, transferring, demoting, disciplining, or promoting. An employee who only controls the victim’s day-to-day tasks does not qualify, under the Seventh Circuit approach, which two other Circuit Courts also follow. However, three other Circuit Courts have ruled that an employee with the authority to control what a fellow worker does on a daily basis is a supervisor, too.
The case of the Ball State University kitchen employee, Maetta Vance, goes back to about 2001. She had been on the job for about ten years, working in the university’s dining and catering department — the only African American in that department. She gained several promotions, and some modest pay raises. But, beginning in 2001, she would later say, her co-workers harassed her with repeated racial epithets and, at times, threatening words or actions. One staff member whom she regarded as a supervisor, William Kimes, allegedly treated other workers more favorably than her and constantly gave Vance the “cold shoulder.”
Another worker whom she also regarded as a supervisor, Saundra Davis, allegedly slapped Vance at one point, used racial epithets including references to the Ku Klux Klan, and physically accosted Vance in an elevator. After Vance complained, her employer took some action, warning other workers and trying to sort out what had actually happened in the kitchen. The management did make it clear that racial harassment would not be tolerated in that department.
Vance sued, but both a district court judge and the U.S. Court of Appeals for the Seventh Circuit ruled that she had not proved a legal claim of racial bias or retaliation creating a hostile work environment under Title VII. A key to the Circuit Court’s decision was its conclusion that Vance had not shown that she had a complaint of racial bias by any supervisor who would qualify under that law. Kimes was a supervisor, but his treatment of Vance was not racial in character, it concluded. Davis, it found, was not a supervisor since she had not been given the formal authority to take an explicit job action. Even if Davis did direct what Vance did day to day, that was not enough, the Circuit Court decided.
Petition for Certiorari
Maetta Vance’s attorneys took her case to the Supreme Court in October of last year, raising the single question of which group of Circuit Courts had it right: those who ruled that a supervisor has to have power to make a “tangible” job action to make the employer liable, or those who ruled that one giving day-to-day assignments also was an agent of the employer.
Since the Court’s two rulings in Farragher and Ellerth in 1998, the petition said, “the lower federal courts have staked out starkly divergent rules for when . . . vicarious liability applies.” The conflict, it argued, is an “entrenched” one that needs to be resolved by the Justices. It noted that the federal government’s main enforcer of Title VII — the U.S. Equal Employment Opportunity Commission — takes the view that day-to-day assignment of tasks by a fellow worker can be enough to make that worker a supervisor under Title VII.
As her case reached the Supreme Court, the only claim she made about a supervisor was aimed at Saundra Davis.
Ball State University urged the Court not to hear the case. It conceded that there is a split among the Circuit Courts on the supervisor issue, but it argued that “no circuit had concluded that an employee was a supervisor under anything resembling the circumstances here. There is, accordingly, no genuine conflict of authority and, at a minimum, there is no outcome-determinative conflict.” Vance, it added, cannot show that Davis was her supervisor “under any standard recognized by the courts of appeals or the EEOC.”
In addition, the University said that the Supreme Court had previously denied a case raising the same conflict issue, and “the landscape in the circuits had not materially changed since then.”
In a reply brief, Vance’s counsel argued that, if the Seventh Circuit had not applied its “restrictive definition” of supervisor, Vance had raised “a triable claim that Davis was a supervisor, i.e., ‘authorized to direct petitioner’s day-to-day work activities,’ which she was.” That is the EEOC standard, the brief said. Davis’s job description said she had a duty to “supervise” and to “direct” and “oversee” others, the reply argued.
The Supreme Court sent the case to the U.S. Solicitor General for the federal government’s views. It responded in May, agreeing that the Circuit Courts were in disagreement, and that the legal issue was important. But the Court should not take up this case as the vehicle to decide the definition of supervisor, the brief argued, saying: “The only employee whose supervisory status is in issue is Davis, and she would fail to qualify as [Vance’s] supervisor under the record before the Court under any of the competing approaches. The Court should not address this important question in a case where it would not affect the outcome and is presented only in the abstract.”
The government brief went on to say that “there is scant evidence that Davis exercised any authority over [Vance’s] daily work activities. Insofar as Davis possessed day-to-day authority over [Vance’s] work, [Vance] was the best person to explain that authority, but her 128-page deposition describes no instances in which Davis actually directed her work.” Moreover, the brief said, Vance had not even shown that she believed Davis was her supervisor.
Vance’s lawyers countered in a supplemental brief that the Solicitor General had struggled to “deflect and minimize the substantial evidence that Davis directed Vance’s daily activities.” Their brief added that the Solicitor General had drawn “doubtful inferences from ambiguities and alleged gaps in the record.”
Whether Vance or the Solicitor General had a better reading of what was in the record, the Court went ahead and granted review on June 25, perhaps leaving the dispute over assignment evidence to see how that was pursued in the further briefing and at oral argument.
Briefs on the Merits
Maetta Vance’s brief on the merits continued to insist that there was substantial evidence in the record that she had been supervised by Saundra Davis, and argued that she should be allowed to pursue that claim further in lower courts, once the Supreme Court had overturned the Seventh Circuit’s “restrictive Title VII rule and the premises on which it rests.” On the merits, her brief contended that “supervisor” is not a narrow term of art, but follows the common-sense notion that one who directs a subordinate’s daily work, demands obedience, and evaluates performance is a supervisor.
The brief suggested that the Court could decide her case by simply ruling that the Seventh Circuit had been wrong in excluding from its definition those who direct and oversee the work of their victims. But it argued that the Court should go further, and “provide more precise guidance to lower courts.” It suggested that the Court embrace the Second Circuit Court’s approach: asking whether authority given to the one who engages in workplace bias “enabled or materially augmented” that worker’s ability to create a hostile work environment for subordinates. This, the brief argued, would be an objective definition, one easy to administer, and one that would fit tightly with the core purposes of Title VII.
In denouncing the Seventh Circuit’s approach, the Vance brief said there is no evidence that Circuit Courts which refuse to follow that standard have been faced with heavy and complex litigation. Even the Supreme Court’s decision in the Farragher case in 1998 involved a supervisory relationship in which the ranking employee did not have the personnel powers that the Seventh Circuit demands of one whom it will treat as a supervisor.
Ball State University’s brief on the merits basically hews closely to the argument that Vance had not made out a case that anyone she challenged was a supervisor, no matter what definition is given to that term. But, on the merits, the brief does not unqualifiedly defend the Seventh Circuit’s approach, and, in fact, edges close to advancing a more expansive definition. The list of powers that the Seventh Circuit used, the University suggested, only provides “the most prominent example of employees who may trigger vicarious liability.”
The Seventh Circuit rule, it added, “does not necessarily reach the entire set of employees who may qualify as supervisors under this Court’s precedent. Instead, under the agency principles that the Court adopted in Farragher and Ellerth, vicarious liability also may be appropriate when the employee is authorized to control a victim’s daily work in a way that materially enables the harassment. Such employees — like the lifeguard in Farragher — have the ability to ‘implicitly threaten to misuse their supervisory powers to deter any resistance or complaint’ by their victims. And although it may be unusual that an employee actually has that control and yet lacks the authority to take any tangible employment actions, employees who do may qualify as supervisors.”
Still, the brief went on to suggest that this broader definition might be difficult for employers and employees to use to tell who is a supervisor, and thus the Court should consider endorsing the Seventh Circuit’s rule because it “provides a bright-line.” But, then again, the brief indicated, the Court can work out some limiting principles even if it does endorse the broader approach. The brief provided a list of some of the qualifying considerations to be taken into account.
In the end, though, the University brief argued that Vance cannot even satisfy the broader standard, so the Court should decide the case on the premise that the record shows that Davis was not a supervisor.
The Solicitor General, in the government’s brief on the merits “in support of neither party,” spent most of the contents of the brief arguing for the EEOC definition, treating as a supervisor any employee who controls another employee’s day-to-day work activities. But the brief also added in a stronger argument on policy grounds: if employers are going to be held liable only for the actions of supervisors with power to hire, fire, or take other intangible employment actions, “employers would have diminished incentives to train and monitor intermediate supervisors.” And, workers who are subjected to harassment by those who control their daily assignments would have less ability to complain to management even when management has set up a grievance procedure, the brief argued.
The brief also put in a defense of the EEOC definition and urged the Court to defer to the Commission’s expertise in the field. Moreover, it noted that the Seventh Circuit had adopted its definition without the benefit of EEOC’s formal guidance.
The final part of the brief, though, renewed the government’s argument that Vance herself has not made a sufficient claim that anyone had a supervisory role over her. Again, it argued that there is “scant evidence” in the record that Saundra Davis was Vance’s supervisor in any meaningful sense. She may have had a supervisory title, but that by itself is not enough, the brief argued. While the Justices could make their own evaluation of what the record in the case actually shows, the Solicitor suggested, the usual practice is to announce a correct standard and then let lower courts apply it. If that is done in this case, Vance might be given an opportunity in lower courts to amend her court papers or to supply added information to show that she can meet the correct standard.
Vance has the amici support of the AARP, the National Association of Employment Lawyers, and of a list of women’s rights, civil rights and job rights organizations.
Ball State University has a longer list of amici supporters, including the U.S. Chamber of Commerce, the National Retail Federation, higher education organizations, human resource management organizations, and conservative legal advocacy groups.
The Court’s first task is to decide whether the factual record in the case is enough to allow Maetta Vance to get a ruling on what the proper definition of “supervisor” should be under Title VII. There is no doubt, of course, that she had a legal right to bring her Title VII lawsuit in court. But if the Court accepts either the Solicitor General’s argument, that she has so far not made an adequate record, or the Ball State University argument, that she cannot make such a record in any event, it is faced with a choice about making an abstract ruling. It has the option of assuming, for the sake of the argument, that she either has or might yet be able to show that Saundra Davis did act toward her in a supervisory role, and then proceed to a decision. That does look a little bit like an advisory opinion, though, and the Court may conclude that it has no authority to issue such a ruling.
If it proceeds to the merits, it will discover from the final round of briefs that there is no one unequivocally in support of the tight definition that the Seventh Circuit has followed. Ball State University has come close to implying that the Seventh Circuit standard is too narrow, if it is understood as rigidly confined to specific personnel powers. It thus has offered the Court an alternative definition, that at least on initial reading looks fairly near to what the EEOC has mandated, and, indeed, what Vance’s own counsel has put forth.
The Court, though, is confronted with the jurisprudential reality that the lower courts have not been able to come together on a definition of “supervisor” under Title VII, and it may therefore feel that it needs to lay down an explicit, bright-line rule. That, perhaps, is what most recommends the Seventh Circuit’s rule: narrow though it may be, it certainly is clear.
This case, in plain English:
The federal civil rights law that outlaws racial and other forms of discrimination on the job has been understood, at least for the past fourteen years, as holding management of a company or institution to blame legally if one of its supervisors, using the power of that position over other workers, engages in workplace discrimination. But the Supreme Court has not clarified what “supervisor” means in that respect. This case involves an Indiana woman, the only African American in her department, who alleges that she was constantly picked on by fellow employees whom she regarded as her supervisors, and that they created a hostile situation for her at work.
The lower courts in her case, though, said she had no legal claim, because the people she claimed to be supervisors either did not act out of a racial motive, or were not supervisors at all. To be treated as a supervisor under federal law, and therefore to make the employer legally to blame for discrimination by that employee, the challenged employee must have the authority to hire, fire, discipline, promote, or transfer another worker. The Indiana woman had not shown that the co-workers whom she thought were supervisors had that authority over her, the lower courts decided.
With the support of the federal government, the Indiana woman is urging the Supreme Court to define as a supervisor under civil rights laws in the workplace anyone who controls the day-to-day work activities of another employee, and treats them in a discriminatory way.
There is a procedural issue in this case: whether the Court should decide it at all, since there is a dispute about whether the Indiana woman did offer evidence in the lower court that those she said harassed her were, in fact, her supervisors.
Recommended Citation: Lyle Denniston, Argument preview: Who is a supervisor?, SCOTUSblog (Nov. 21, 2012, 12:03 AM), http://www.scotusblog.com/2012/11/argument-preview-who-is-a-supervisor/