In Vance v. Ball State University et al., the Supreme Court of the United States held that “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.” “Tangible employment actions” are actions that 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.”
In Vance, an African-American employee at Ball State University (BSU) alleged that she was the victim of racial discrimination and retaliation at her workplace. The plaintiff claimed that a fellow BSU employee was the initiator of such discriminatory acts. In her complaint, the plaintiff alleged that the employee was her supervisor and therefore BSU was vicariously liable for the creation of a racially hostile work environment.
BSU moved to dismiss the case claiming that it could not be held vicariously liable for the employee’s alleged racial harassment. BSU insisted the alleged harassing employee was not the plaintiff’s supervisor as she could not hire, fire, promote, transfer, or disciple the plaintiff. The plaintiff argued that her fellow employee was a “supervisor” because she had the authority to control the plaintiff’s daily activities and evaluate her performance.
The Supreme Court sided with BSU in holding that for purposes of Title VII, to be a “supervisor,” an employee must have the power to take a tangible employment action against the victim. That is, he must be able to “effect a ‘significant change in employment status,” such as hiring, firing, demoting, promoting, transferring, or disciplining. Thus, BSU was entitled to win the case because the plaintiff did not show that the employee who discriminated against her was a “supervisor” under the Court’s definition.
In California, employees alleging employment discrimination or harassment are likely to sue under the Fair Employment and Housing Act (“FEHA”) rather than Title VII. California's FEHA, with some differences in wording, generally follows Title VII in prohibiting employment discrimination based on race, color, religion, sex, and national origin. However, the FEHA usually offers employees greater protection, relief, and procedural advantages than Title VII. For example, under the FEHA, as opposed to Title VII, plaintiffs may be awarded unlimited compensatory and punitive damages. Therefore, it is usually to plaintiffs' advantage to sue under the FEHA in California.
Unlike Title VII, the FEHA defines “supervisor” as any person having the authority to hire, transfer, discharge other employees, or the responsibility to direct them. Thus, a person having the responsibility to direct an employee's day-to-day duties (i.e., a team leader) is a “supervisor” under the FEHA even if lacking authority to hire, fire, promote, or transfer the employee. This definition is broader than the definition under Title VII, and the Vance decision may have little impact on cases brought under California state law.
Practical Tips: Under the FEHA, an employer is strictly liable for workplace harassment by a supervisor. This means that an employer cannot avoid liability by claiming lack of knowledge of the supervisor's conduct or that the supervisor's conduct violated the employer's announced anti-harassment policies. When a hostile environment is created by an employee other than a supervisor, the FEHA imposes a negligence standard for harassment. An employer may be held liable for a non-supervisor’s harassing conduct if the employer knew or should have known of such conduct. Thus, employers should continually monitor co-worker interactions - especially between supervisors and subordinates - to ensure a non-hostile working environment for their employees.