The U.S. Supreme Court, in addition to its recent flurry of more widely known decisions dealing with gay rights, affirmative action and the Voting Rights Act, issued several other lesser known decisions, including Vance v. Ball State University, a decision directly affecting the way Courts and attorneys look at Title VII, which is the federal law that prohibits employment discrimination based on .
In Vance, the petitioner, an African-American woman, sued her employer, Ball State University, alleging that a fellow employee, Saundra Davis, created a racially hostile work environment in violation of Title VII. The district court granted summary judgment for Ball State, finding that Ball State was not vicariously liable for Davis’ alleged actions because Davis, who could not take tangible employment actions against Vance, was not a supervisor. The Seventh Circuit then affirmed the decision.
The Supreme Court, relying on past Title VII precedent, also affirmed and did not take this opportunity to extend employer liability for the acts of its general employees, including those who are not in a supervisory capacity. Rather, the Supreme Court, essentially maintaining the status quo that only adverse employment actions by a “supervisor” call for vicarious liability against the employer, held, “An employee is a ‘supervisor’ for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim.” In specifically addressing the facts in Vance (where a non-supervisor co-worker created the hostile work environment), the Court held, “A victim can prevail [against a co-worker who possesses some authority to assign daily tasks] simply by showing that the employer was negligent in permitting the harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor in determining negligence.”
In the end, the Vance decision offers no real change to Title VII liability. If anything, the Supreme Court, in its 5-4 decision, simply reemphasized that in order to keep the employer on the liability-hook for discrimination or retaliation cases involving adverse employment actions, the action must have been taken by a “supervisor” as defined by the Court in Vance. If not…if the action is taken by a non-supervisor co-worker, the burden on the plaintiff is heightened and requires a showing that the employer was negligent in permitting the co-worker to harass or take the adverse employment action and the plaintiff-employee.
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