COMMENT VANCE V. BALL STATE UNIVERSITY AND THE ILL-FITTED SUPERVISOR/CO-WORKER DICHOTOMY OF EMPLOYER LIABILITY

Transcription

1 COMMENT VANCE V. BALL STATE UNIVERSITY AND THE ILL-FITTED SUPERVISOR/CO-WORKER DICHOTOMY OF EMPLOYER LIABILITY TABLE OF CONTENTS I. INTRODUCTION II. SEXUAL HARASSMENT UNDER TITLE VII AND EMPLOYER VICARIOUS LIABILITY A. Title VII of the Civil Rights Act B. EEOC Guidelines C. Supreme Court Tailoring Meritor Savings Bank, FSB v. Vinson Burlington Industries, Inc. v Ellerth and Faragher v. City of Boca Raton III. THE CIRCUIT SPLIT ON THE INTERPRETATION OF THE TERM SUPERVISOR A. The Parkins Test: The Narrow Definition of the Term Supervisor B. The Mack Test: The Broad Definition of the Term Supervisor C. Somewhere in Between: Proposed Alternative Definitions of Supervisor in Vance IV. ANALYSIS OF VANCE V. BALL STATE UNIVERSITY A. Vance v. Ball State University B. Is Vance Consistent with Ellerth and Faragher? This Comment received the Baker Botts award for Outstanding Work in the Area of Employment Law. I would like to thank Claudia, Bryn, and my parents, Dennis and Mary Ellen Davenport, for their support, encouragement, and understanding throughout law school. None of my accomplishments would have been possible or worthwhile without them. I owe many thanks to Matt McClellan, Kelly Ferrell, Tal DeBauche, and Dr. Ronald Turner for their guidance and encouragement in the writing of this Comment. I would also like to recognize and thank the editors of the Houston Law Review for their time and dedication in preparing this Comment for publication. 1431

2 1432 HOUSTON LAW REVIEW [52:5 V. THE ILL-FITTED SUIT OF THE SUPERVISOR/EMPLOYEE DICHOTOMY A. The Court Should Recognize a Class of Superiors B. Is Recognizing a Class of Superiors Consistent with the Principles of Agency? C. Is Recognizing a Class of Superiors Consistent with the EEOC Guidelines? VI. IMPACT OF RECOGNIZING A CLASS OF SUPERIORS THAT DOES NOT TRIGGER VICARIOUS LIABILITY WHILE EMPLOYERS CONTINUE TO BE JUDGED UNDER A NEGLIGENCE STANDARD A. Impact on Juries: Less Confusion B. Impact on Parties VII. CONCLUSION I. INTRODUCTION Have you ever heard the one about the ill-fitting suit? Well, once there was a man who wanted a well-fitted suit, and, for the first time, went to a tailor to have a suit made to fit. Having never been fitted before, the man did his best not to flex or wince or stand too straight or stoop or do anything out of the ordinary. After the tailor took the man s measurements, he was told to come back in a week to get his new suit. When the man returned, he saw the suit and it was beautiful! However, upon trying the suit on, he found that it did not fit. He called to the tailor, Look, this sleeve is too long and this leg is too short and the shoulders are too wide. The man went on and on and the tailor started to worry. Then, the tailor s eyes lit up with a solution. The learned tailor instructed the man on how to slide one arm down into the length of the sleeve, and how to bend slightly in the opposite knee, and how to hunch his back, and how to swing the other arm while hoisting his waistband well above the hip with this bent arm. When the man emerged from the shop in his new suit, he struggled to walk down the sidewalk. Across the street, two women sat having coffee and noticed the man as he left the shop. With pity, one friend said to the other, Would you look at that poor, afflicted man. The other replied, Yes, but doesn t that suit fit wonderfully! 1 Such is the story of fashioning the standards governing employer vicarious liability in the area of employment 1. The Dick Van Dyke Show: Punch Thy Neighbor (CBS television broadcast Jan. 17, 1962), available at

3 2015] VANCE V. BALL STATE UNIVERSITY 1433 discrimination. 2 Some fifty years after Title VII of the Civil Rights Act 3 made certain discriminatory practices illegal, the garb of court-made standards and definitions no longer fits well. 4 Both the employees Title VII seeks to protect and the employers seeking to stay within the law can relate to the man stuck with a beautifully tailored suit that simply does not fit. In its most recent alteration, the Supreme Court s opinion in Vance v. Ball State University 5 fashioned a definition of supervisor to be used in establishing employer vicarious liability in employment discrimination cases. This definition severely limits the employees that can be considered to be supervisors, thereby subjecting the employer to vicarious liability, and renders all other employees merely co-workers, triggering a negligence standard for liability. 6 The Court s refusal to construct a liability standard that takes into account co-workers who have superior power over other co-workers leaves employment discrimination litigants in an ill-fitted suit. 7 This Comment explores how the definition of supervisor advanced in Vance v. Ball State University forces the realities of the workplace into an ill-fitted set of descriptions, definitions, and standards. Part II reviews the foundation for defining employer vicarious liability in the employment discrimination context, including a look at Title VII, the Equal Employment Opportunity Commission (EEOC), and relevant Supreme Court cases. Part III discusses the circuit split concerning the issue of employer vicarious liability and the definition of the term supervisor. Part IV concerns the case in point, Vance, and seeks to analyze the holding s consistency with prior Supreme Court decisions. Part V suggests that another class of employees, termed superiors, should be recognized and incorporated into the employer liability standard in order to better fit the realities of the workplace. Part VI looks forward to possible implications arising from the recognition of a class of superiors. Finally, in conclusion, Part VII suggests that notwithstanding congressional action, 2. See infra Part II (giving an overview of the evolution of employer vicarious liability standards) U.S.C. 2000e-2(a)(1) (2012). 4. See infra Part V (discussing how the current laws governing employer vicarious liability do not fit the realities of the workplace). 5. Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013). 6. See infra Part IV (presenting the definition of supervisor provided by the Vance opinion). 7. See infra Part V (contending that the Court should recognize a class of superior employees).

4 1434 HOUSTON LAW REVIEW [52:5 recognizing a class of superiors would not contravene Supreme Court jurisprudence. II. SEXUAL HARASSMENT UNDER TITLE VII AND EMPLOYER VICARIOUS LIABILITY To explain the current supervisor/co-worker dichotomy in the employment discrimination context, this Comment looks at three factors. First, the formation of Title VII, its scope, and its objectives are explained. Second, the creation of the EEOC, its duties, and its limited authority are discussed. Finally, several landmark employment discrimination cases showing the Supreme Court s evolving interpretation of Title VII are explored. These factors explain how and by whom Title VII is interpreted and enforced. A. Title VII of the Civil Rights Act As it is commonly known today, the word sex was added to Title VII while it was pending Congressional vote 8 to act as a poison pill to kill the legislation. 9 However, the inclusion of sex did not kill the legislation. 10 The bill survived, and discrimination based on sex became an actionable claim under Title VII of the Civil Rights Act. 11 Title VII makes it an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual s race, color, religion, sex, or national origin. 12 Since its inception, the scope of Title VII s coverage in the context of sex discrimination has been a litigious area of Title VII jurisprudence. 13 Traditional sex discrimination cases, so-called 8. See Jeff Bleich & Kelly Klaus, Sexual Harassment: The Supreme Court May Yet Have Its Biggest Say on the Subject, OR. ST. B. BULL., May 1998, at 15, 15 (addressing the controversial beginnings of sex discrimination legislation). 9. Id. (It was expected this outlandish amendment would kill Title VII altogether. ). 10. Id. The way that sex was added to Title VII produced a law virtually devoid of legislative debate. Id U.S.C. 2000e-2(a)(1)(2) (2012); see Bleich & Klaus, supra note 8, at 15 ( Instead of limiting race discrimination laws, [the senator who added the word sex] succeeded in expanding the law of workplace discrimination to include gender. ) U.S.C. 2000e-2(a)(1)(2). 13. See U.S. EQUAL EMP T OPPORTUNITY COMM N, Sexual Harassment Charges: EEOC & FEPAs Combined: FY 1997 FY 2011, available at /eeoc/statistics/enforcement/sexual_harassment.cfm (last visited Apr. 18, 2015) (showing the total number of sexual harassment charges made per year and the resolutions of those charges).

5 2015] VANCE V. BALL STATE UNIVERSITY 1435 quid pro quo cases, 14 revolved around primarily women being coerced into unwanted sexual situations at the hands of manipulative supervisors. 15 However, the landscape of sexual discrimination cases has grown to encompass issues such as harassment based on gender stereotyping, 16 harassment by members of one s own sex, 17 and, as will be discussed in this Comment, harassment via a hostile environment targeting employees of a particular gender. 18 According to court precedent, Title VII s primary objective is to prevent discrimination. 19 In enacting Title VII, Congress s goals included: (1) to encourage employers to provide internal procedures such as forceful harassment policies and clear complaint procedures to combat discrimination in the workplace; 20 (2) to encourage conciliation instead of litigation in such disputes; 21 and (3) to create a commission, now known as the EEOC, to oversee employment discrimination cases that arise under the new legislation. 22 Title VII, however, sorely lacks the specificity to accomplish its stated goals, especially concerning employer vicarious liability. 23 The specifics of enforcing and interpreting the 14. See Eugene Scalia, The Strange Career of Quid Pro Quo Sexual Harassment, 21 HARV. J.L. & PUB. POL Y 307, 309 (1998) (describing the traditional framework of quid pro quo discrimination as proposition, rejection, [and] retaliation ). 15. See Heather S. Murr, The Continuing Expansive Pressure to Hold Employers Strictly Liable for Supervisory Sexual Extortion: An Alternative Approach Based on Reasonableness, 39 U.C. DAVIS L. REV. 529, (2006) (exploring the quid pro quo label of sexual harassment claims). 16. See Stephanie Bornstein, The Law of Gender Stereotyping and the Work-Family Conflicts of Men, 63 HASTINGS L.J. 1297, (2012) (discussing Title VII and the law of gender stereotyping). 17. See Dale Carpenter, Same-Sex Sexual Harassment Under Title VII, 37 S. TEX. L. REV. 699, (1996) (presenting arguments supporting Title VII coverage of same-sex harassment). 18. See discussion infra Part II.C (discussing the evolution of hostile environment claims). 19. Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998) ( [Title VII s] primary objective... is not to provide redress but to avoid harm. ) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975)). But see Stephen Plass, Reinforcing Title VII with Zero Tolerance Rules, 39 SUFFOLK U. L. REV. 127, (2005) (arguing that the compromises legislators made in areas like preserving seniority systems undermines the perception of an equality driven statute). 20. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998). 21. Id. 22. See infra Part II.B (explaining the creation of the EEOC and its duties). 23. See David A. Forkner & Kent M. Kostka, Unanimously Weaving A Tangled Web: Walters, Robinson, Title VII, and the Need for Holistic Statutory Interpretation, 36 HARV. J. ON LEGIS. 161, (1999) (discussing the problems courts have had in interpreting which employers fall under Title VII s umbrella).

6 1436 HOUSTON LAW REVIEW [52:5 instructions of Title VII have been left up to the judiciary. 24 Relevant to this Comment, certain key terms are not defined within Title VII: in particular, Title VII does not include the word supervisor nor does it directly state congressional intentions regarding employer vicarious liability. 25 The next two sections of this Comment explore the two primary contexts in which Title VII adherence, scope, and liability are understood: EEOC Guidelines and Supreme Court cases. 26 B. EEOC Guidelines Per the Civil Rights Act of 1964, 27 the EEOC was established as one of the federal agencies charged with implementing Title VII. 28 Originally only having power to investigate and conciliate charges of employment discrimination, the EEOC was later, with the passage of the Equal Employment Act of 1972, given the authority to litigate on behalf of victims. 29 Additionally, the EEOC issues guidelines, regulations, and other various guidelines designed to aid employers and employees in interpreting and implementing Title VII as well as some other statutes. 30 In many employment discrimination lawsuits brought under Title VII, the EEOC s guidelines on the issue are at the center of the controversy. 31 Because the EEOC does not have rulemaking capability under Title VII, the Supreme Court has recently treated the EEOC s Title VII guidelines as persuasive authority only, meaning that the Court considers the EEOC s guidelines 24. See Bleich & Klaus, supra note 8, at 15 ( Because there is no legislative history surrounding this amendment, courts have had broad latitude in divining the intent of Congress concerning gender discrimination in the workplace. ) U.S.C. 2000e (2012); Philip K. Lyon & Bruce H. Phillips, Faragher v. City of Boca Raton and Burlington Indus., Inc. v. Ellerth: Sexual Harassment Under Title VII Reaches Adolescence, 29 U. MEM. L. REV. 601, 630 (1999) (quoting Glickstein v. Neshaminy Sch. Dist., No , 1999 U.S. Dist. LEXIS 727, at *32 (E.D. Pa. Jan. 26, 1999)) ( Neither Title VII nor the Supreme Court define the term supervisor. ). 26. See infra Part II.B C. 27. Civil Rights Act of 1964, Pub. L. No , 705, 78 Stat. 241, (1964) (codified as amended at 42 U.S.C. 2000e-4 (2006)). 28. Nancy M. Modesitt, Reinventing the EEOC, 63 SMU L. REV. 1237, (2010). 29. Id. at See Laws and Guidance, U.S. EQUAL EMP. OPPORTUNITY COMMISSION, (last visited Apr. 18, 2015) (providing an index of all the binding and nonbinding guidance issued by the EEOC concerning employment discrimination issues). 31. See Melissa Hart, Skepticism and Expertise: The Supreme Court and the EEOC, 74 FORDHAM L. REV. 1937, (2006) (examining the Supreme Court s treatment of EEOC Guidelines in a number of cases).

7 2015] VANCE V. BALL STATE UNIVERSITY 1437 but is not bound to follow them. 32 So, while the EEOC is continually issuing guidelines pertaining to employment discrimination, the judiciary ultimately has the authority to accept the EEOC s guidelines or to fashion its own interpretation when confronted with a Title VII case. 33 C. Supreme Court Tailoring 1. Meritor Savings Bank, FSB v. Vinson. 34 In 1986, the Supreme Court granted certiorari to Meritor and, thereby, accepted the opportunity to formally recognize the claim of hostile work environment as a valid claim of sex discrimination under Title VII. 35 The Meritor case involved a bank employee who claim[ed] that during her four years at the bank she had constantly been subjected to sexual harassment by her supervisor. 36 Though the allegations did involve sexual intercourse, both consensual and forced, 37 the case was not a traditional quid pro quo sexual harassment case because the plaintiff suffered no economic harm. 38 The district court rejected the plaintiff s claim because of the lack of economic harm, 39 and the appellate court reversed, citing the hostile work environment theory. 40 Concurring with the appellate decision, the Supreme 32. See Rebecca Hanner White, The EEOC, the Courts, and Employment Discrimination Policy: Recognizing the Agency s Leading Role in Statutory Interpretation, 1995 UTAH L. REV. 51, (discussing the Court s use of Skidmore deference when evaluating EEOC Guidelines). 33. See Nancy M. Modesitt, The Hundred-Years War: The Ongoing Battle Between Courts and Agencies over the Right to Interpret Federal Law, 74 MO. L. REV. 949, 955 (2009) (discussing the struggle between courts and agencies to interpret federal statutes). 34. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). 35. See id. at 66 ( Since the Guidelines were issued, courts have uniformly held, and we agree, that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment. ). 36. Id. at Id. The defendant denied respondent s allegations of sexual activity. Id. at 61. The district court did not make a finding as to the sexual conduct between the parties. Id. 38. See id. at (explaining that the facts of this case fall within the hostile work environment doctrine not the quid pro quo doctrine). The Court flatly rejected the petitioner s argument that Title VII decisions should be limited to discrimination that has a tangible, economic detriment to the victim. Id. at Id. at The district court also held that the sexual relationship between the parties, if there had been one, had been voluntary. Id. The Supreme Court criticized the district court saying that [t]he correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary. Id. at Id. at 62; see also John H. Marks, Smoke, Mirrors, and the Disappearance of Vicarious Liability: The Emergence of a Dubious Summary-Judgment Safe Harbor for Employers Whose Supervisory Personnel Commit Hostile Environment Workplace Harassment, 38 HOUS. L. REV. 1401, 1409 (2002) (defining Title VII hostile work environment claims as harassment of no direct tangible consequence and referring

8 1438 HOUSTON LAW REVIEW [52:5 Court recognized for the first time that a claim of sexual harassment under Title VII is not limited to an economic injury. 41 The Court firmly stated that Title VII was intended to prohibit a wide-range of discriminatory practices in the workplace. 42 The Court unanimously held that a claim of hostile work environment was actionable under Title VII. 43 However, the Court also established that the harassment must be sufficiently severe or pervasive in hostile environment claims, as opposed to quid pro quo claims, which have no such standard. 44 The Court also addressed the issue of vicarious liability in hostile environment sexual discrimination cases. 45 The Court unanimously agreed that agency principles should guide the standards set for vicarious liability. 46 The majority chose not to make a final holding on the issue 47 but did reverse the appellate decision concluding that employers are always automatically liable for sexual harassment by their supervisors. 48 In an opinion agreeing with the judgment but disagreeing on the issue of liability, Justice Marshall sought to establish the standard for employer liability in conjunction with recognizing the hostile work environment claim. 49 His opinion cited EEOC Guidelines stating that the Commission and the courts have held for years that an employer is liable if a supervisor or an agent violates the Title VII, regardless of knowledge or any other mitigating factor. 50 Marshall opined that there should be no creation of a special notice rule in hostile environment cases. 51 He did, however, suggest that there may be circumstances when the court s assessment of to this extension of Title VII coverage as a second-generation conception of Title VII ). 41. Meritor, 477 U.S. at 67 68, 73 ( [W]e hold that a claim of hostile environment sex discrimination is actionable under Title VII. ). 42. Id. at 64 ( The phrase terms, conditions, or privileges of employment [from Title VII] evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment. (quoting L.A. Dep t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978))). 43. Id. at 74 ( I fully agree with the Court s conclusion that workplace sexual harassment is illegal, and violates Title VII. ) (Marshall, J., concurring). 44. Id. at 67 (majority opinion). 45. See id. at (discussing at length the employer s liability). 46. Id. at 72 ( [W]e do agree with the EEOC that Congress wanted courts to look to agency principles for guidance in [employer liability]. ). 47. Id. ( We... decline the... invitation to issue a definitive rule on employer liability.... ). 48. Id. (emphasis added). 49. See id. at 74, (Marshall, J., concurring). 50. Id. at 75 (citing 45 Fed. Reg (Nov. 10, 1980) (to be codified at 29 C.F.R. pt. 1604)). 51. Id. at 77.

9 2015] VANCE V. BALL STATE UNIVERSITY 1439 remedies could be affected by whether or not the victim provided notice of discrimination to the employer. 52 Justice Marshall s opinion sheds important light on the vicarious liability controversy that emerged following recognition of the hostile work environment claim. 53 After Meritor, vicarious liability standards were strictly tied to the type of sex discrimination claim made. 54 If a complainant charged a quid pro quo claim, the employer was held to be vicariously liable for the actions of a harassing supervisor. 55 However, if the complainant charged a hostile environment claim, the employer was held to a negligence standard based on its own actions. 56 Consequently, this rule encouraged Title VII plaintiffs to state their claims as quid pro quo claims in order to take advantage of the more plaintifffriendly vicarious liability standards. 57 So, some twelve years after Meritor, the Supreme Court granted certiorari to Burlington Industries, Inc. v. Ellerth to assist in defining the relevant standards of employer liability. 58 On the very same day that the Court released the Ellerth opinion, the Court also released its opinion on Faragher v. City of Boca Raton, 59 another case dealing with a similar issue of vicarious liability. 60 The holdings in these two cases are the landmark decisions governing employer vicarious liability in employment discrimination cases Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton. The circumstances of Ellerth involved a female complainant who was sexually harassed by a male 52. Id. at 78 (pointing out that such a case may arise if the complainant sought backpay through a charge of constructive discharge and had not provided the employer with notice). 53. See infra Part III (discussing the circuit split concerning what type of employee triggers vicarious liability for employers). 54. Burlington Indus., Inc. v Ellerth, 524 U.S. 742, (1998) ( The standard of employer responsibility turned on which type of harassment occurred. ). 55. Id. at Id. at Id. at Id. at Faragher v. City of Boca Raton, 524 U.S. 775, 780 (1998) (holding that an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense). 60. Id. at Linked temporally, by subject matter, and by a replicated holding, a discussion of both opinions together gives a full account of the Court s stance on vicarious liability. Id.; Ellerth, 524 U.S. at See infra Part II.C.1 2 (discussing the opinions and the impact they had on employer vicarious liability).

10 1440 HOUSTON LAW REVIEW [52:5 superior at Burlington Industries. 62 The supervisor made lewd remarks and threatened to take tangible employment actions against Ellerth if she did not loosen up. 63 However, Ellerth received promotions and the harasser never actually followed through with his threats to take tangible employment action against her. 64 The companion case, Faragher, centered on the continued sexual harassment of women who worked for a city lifeguard crew supervised by two male superiors. 65 The supervisors allegedly made lewd comments and gestures about and to females, touched female employees inappropriately, threatened Faragher with undesirable job duties if she did not date the supervisor, and said they would never promote females beyond a certain rank. 66 In both suits the women claimed hostile work environment. 67 In both Ellerth and Faragher, the Court directly addressed the issue of an employer s vicarious liability for the actions of a supervisor. 68 The Court explained that the general common law of agency 69 would govern the decision (as opposed to state law) 70 as the Meritor court had already held that agency principles would govern this area 71 and Congress had never altered the statute to 62. Ellerth, 524 U.S. at The supervisor was considered a mid-level manager and not her immediate report, but was one-level removed from Ellerth. Id. at 747. He did, however, have authority to make hiring and promotion decisions. Id. 63. Id. at Id. at Faragher, 524 U.S. at The supervisory status of one of Faragher s harassers would become very important to the analysis of later courts in their attempt to define the term supervisor. See Vance v. Ball State Univ., 133 S. Ct. 2434, (2013) (questioning whether one of the harassers had the requisite authority, per the Vance holding, to have qualified as a supervisor) (Ginsburg, J., dissenting). 66. Faragher, 524 U.S. at Id.; Ellerth, 524 U.S. at Faragher, 524 U.S. at 780 ( This case calls for identification of the circumstances under which an employer may be held liable under Title VII... for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination. ); Ellerth, 524 U.S. at 753 ( [T]he issue of real concern to the parties is whether Burlington has vicarious liability for [the supervisor s] alleged misconduct, rather than liability limited to its own negligence. ). 69. Ellerth, 524 U.S. at Id. at The majority also quickly dismissed the EEOC Guidelines in this area saying they provide little guidance on the issue of employer liability for supervisor harassment. Id. at Id. at 763 ( [W]e are bound by our holding in Meritor that agency principles constrain the imposition of vicarious liability in cases of supervisory harassment. ); Faragher, 524 U.S. at 792 ( Meritor s statement of the law is the foundation on which we build today. ).

11 2015] VANCE V. BALL STATE UNIVERSITY 1441 change that interpretation. 72 Also, the Court felt compelled to issue a clear law in this area. 73 Conceding that hostile environment sexual harassment by supervisors... is a persistent problem in the workplace, 74 the Court then addressed the vexing problem of when an employer is to be held vicariously liable for torts committed by supervisory employees acting outside the scope of their employment. 75 The Court stated that it is almost always going to be the case that an individual committing sexual harassment will not be acting within the scope of employment, but rather out of their own will and for their own purposes. 76 After a discussion of the principles of agency relations in 219(2) of the Restatement (Second) of Agency, 77 the Court stated the apparent authority doctrine was irrelevant when a party was seeking to impose vicarious liability based on an agent s misuse of delegated authority and instead applied the aided in agency relation 78 doctrine to the circumstances of each case. 79 The Court finally held that the employer s exposure to vicarious liability turned on whether the supervisor had taken a tangible employment action against the victim. 80 If there had 72. Faragher, 524 U.S. at 792 ( [T]he force of precedent here is enhanced by Congress s amendment to the liability provisions of Title VII since the Meritor decision, without providing any modification of our holding. ); Ellerth, 524 U.S. at ( Congress has not altered Meritor s rule even though it has made significant amendments to Title VII in the interim. ). 73. Ellerth, 524 U.S. at 754 ( In express terms, Congress has directed federal courts to interpret Title VII based on agency principles. Given such an explicit instruction, we conclude a uniform and predictable standard must be established as a matter of federal law. ). 74. Faragher, 524 U.S. at See Ellerth, 524 U.S at The Court recognized that an employer may be liable for both negligent and intentional torts committed by an employee within the scope of his or her employment. Id. at Id. at The Court quoted the Restatement (Second) of Agency 219(2) (1957): (2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment unless: (a) the master intended the conduct or the consequences, or (b) the master was negligent or reckless, or (c) the conduct violated a non-delegable duty of the master, or (d) the servant purported to act or speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation. Id. at Id. at Id. at ; see also Faragher, 524 U.S. at (discussing the lower court s analysis of the two doctrines). 80. See Ellerth, 524 U.S at (explaining the affirmative defense the Court fashioned for employers to avoid vicarious liability when a supervisory employee commits illegal employment discrimination but does not take a tangible employment action against the injured party).

12 1442 HOUSTON LAW REVIEW [52:5 been no tangible employment action taken, the Court offered employers an affirmative defense to vicarious liability. 81 The defense, subject to proof by a preponderance of the evidence, consists of two elements (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. 82 If a tangible employment action had occurred, then the employer did not have liberty to offer this affirmative defense. 83 In particular, the Ellerth opinion unraveled the former distinction where the liability standard turned on the type of sex discrimination that occurred. 84 Instead, now quid pro quo claims and hostile environment claims were subject to the same standards for vicarious liability. 85 The important distinction that would arise from these cases is the distinction of what constitutes a tangible employment action 86 and how to invoke the elements of the affirmative defense. 87 Still later, the definition of supervisor became an all-important question to sexual harassment cases, leading the Court to Vance v. Ball State University Id. at Id. at 765. The dissent strongly objected to putting the power to eliminate the affirmative defense squarely into the hands of plaintiffs, contending that this would make the amount of litigation skyrocket. Id. at (Thomas, J., dissenting). 83. Id. at 765 (majority opinion). The dissent points out that this treatment is also in considerable tension with our holding in Meritor that employers are not strictly liable for a supervisor s sexual harassment. Id. at 773 (Thomas, J., dissenting). 84. David J. Walsh, Small Change: An Empirical Analysis of the Effect of Supreme Court Precedent on Federal Appeals Court Decisions in Sexual Harassment Cases, , 30 BERKELEY J. EMP. & LAB. L. 461, 471 (2009). The dissent argued that sexual harassment cases should get the same treatment as racial hostile environment cases and that the distinction between quid pro quo cases and hostile environment cases should remain. Ellerth, 524 U.S at (Thomas, J., dissenting). The dissent argued that, as in racial motivated hostile environment cases, employers should be held only to a negligence standard because no tangible act has occurred which could be seen as an act of an employer. Id. at (Thomas, J., dissenting). 85. See Walsh, supra note 84, at 471 ( The Court rejected the relevance of the labels quid pro quo or hostile environment to the determination of vicarious liability. Instead, the issue is whether a tangible employment action has been taken. (citation omitted)). But see Murr, supra note 15, at (conceding there is some argument as to how much the holding divested quid pro quo claims of vicarious liability). 86. Murr, supra note 15, at Id. at See infra Part IV (discussing the Vance holding s definition of supervisor ).

13 2015] VANCE V. BALL STATE UNIVERSITY 1443 III. THE CIRCUIT SPLIT ON THE INTERPRETATION OF THE TERM SUPERVISOR In the years following Faragher and Ellerth, there arose a disagreement among courts as to the definition of supervisor under Title VII. The Supreme Court stated that they granted certiorari to Vance to solve this circuit split. 89 As stated earlier, the term supervisor is not mentioned in Title VII but is rather a court-made distinction. 90 Therefore, looking to judicial decisions speaking to the definition of supervisor is the appropriate authority. 91 To understand the need for clarification of the term supervisor and the impact of the decision, a look at the split and possible options for the definition of supervisor is imperative. 92 A. The Parkins Test: The Narrow Definition of the Term Supervisor One side of the circuit split followed the holding in Parkins v. Civil Constructors of Illinois, Inc. 93 Parkins involved a woman, who worked for just over two years as a dump-truck driver for Civil Constructors, a local construction company. 94 Parkins was allegedly subjected to foul language, sexual stories and innuendos, and eventually touching before she complained to two other workers. 95 Later, she was further harassed by several co-workers bringing a pornographic picture to work, making sexually suggestive comments, and grabbing her on two occasions. 96 Shortly after the second wave of incidents, Parkins filed a sexual harassment grievance with the local Teamsters. 97 After having been notified by the Union, the president of Civil Constructors investigated the complaints and, having found there was harassment, eventually punished several of the workers involved. 98 Following the punishments, Parkins 89. Vance v. Ball State Univ., 133 S. Ct. 2434, 2443 (2013) ( We granted certiorari to resolve this conflict. ). 90. See supra notes and accompanying text (explaining that Title VII does not mention the word supervisor ). 91. See Vance, 133 S. Ct. at (exploring the precedential cases pertaining to supervisory authority in the employment discrimination context). 92. See infra Part III (discussing the circuit split and possible solutions). 93. Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027 (7th Cir. 1998). 94. Id. at Id. 96. Id. 97. Id. 98. Id.

14 1444 HOUSTON LAW REVIEW [52:5 concede[d] that she was never harassed again. 99 Parkins worked for Civil Constructors until her seasonal work ended (a few months later) and was then laid off in accordance with the company s seniority policy. 100 After Parkins later filed a charge of discrimination with the EEOC and brought suit against Civil Constructors, 101 the district court granted summary judgment for the employer, finding that none of her harassers was a supervisor and that her internal complaints had been to low-level employees and, therefore, liability could not be imputed to Civil Constructors. 102 The court found that once the principals of Civil Constructors were notified of the harassment, it took prompt corrective action and was, thereby, not liable for the harassment as a matter of law. 103 Upon reviewing the district court s finding that Parkins had not proven a basis for employer liability, 104 the Seventh Circuit stated that it must determine the essential attributes of a supervisor for purposes of determining employer liability. 105 Mentioning several other recent cases, the court held: [T]he essence of supervisory status is the authority to affect the terms and conditions of the victim s employment. This authority primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee. Absent an entrustment of at least some of this authority, an employee does not qualify as a supervisor for purposes imputing liability to the employer. 106 Finding that the harassers in question did not enjoy[] more than minimal authority, and exercised almost no control over truck drivers, they clearly were not supervisors with immediate or successively higher authority in regard to Parkins. 107 The court also held that no reasonable person could have believed that [the two foremen in question] were endowed with this supervisory authority. 108 The court then went on to review the employer liability under a negligence standard and affirmed the summary judgment 99. Id Id. Parkins also filed a claim of retaliation because she was laid off following her complaint and was never rehired. Id. However, this claim is not relevant to this Comment and will not be discussed further Id Id Id Id. at Id. at Id. at Id. at Id.

15 2015] VANCE V. BALL STATE UNIVERSITY 1445 award by the district court. 109 As seen in subsequent cases citing to Parkins, the lasting definition of supervisor would rest on the ability of the harasser to hire, fire, or demote the plaintiff. 110 The major criticism of the Parkins definition of supervisor has been that the test excludes many supervisory employees with obvious power over subordinates. 111 Opponents argue that the Ellerth/Faragher holdings did not limit the definition of supervisor to only those who have economic control. 112 This approach, it is argued, departs from the common-sense understanding of the word in the workplace environment 113 and goes against the realities of the workplace. 114 Proponents of the narrow definition of supervisor contend that it is more clearly aligned with the agency principles the Court has ruled should govern vicarious liability. 115 Supporters also argue that this bright line definition provides employers with clear notice of which employees may subject them to automatic liability, and therefore, boosts more thorough oversight for these employees. 116 This heightened attention, proponents argue, will encourag[e] focused and deliberate preventative efforts on a discrete group of employees,... promot[ing] the avoidance of workplace harassment. 117 Other supporters contend that a clear definition aids parties in understanding the merits of a case as litigation or conciliation efforts are considered. 118 While the narrow Parkins 109. Id. at See, e.g., Weyers v. Lear Operations Corp., 359 F.3d 1049, 1057 (8th Cir. 2004) (holding the evidence did not support a finding that the harasser was a supervisor because he could not hire, fire, promote, or discipline employees within his department ); Noviello v. City of Boston, 398 F.3d 76, 96 (1st Cir. 2005) (holding that the city could not be held vicariously liable for shift supervisors because they had no hiring or firing powers) See, e.g., Brief of Amicus National Partnership for Women & Families, et al. at 3, Vance v. Ball State Univ., 133 S. Ct (2013) (No ), 2012 WL ( Direct supervisors have the greatest practical ability to create a hostile work environment. ) Id. at Id. at Id. at See Brief of Amicus National Retail Federation at 16 19, Vance, 133 S. Ct (No ), 2012 WL ( The Parkins test is consistent with the long-recognized common law fellow servant rule and its vice-principal exception. The Second Circuit s Mack analysis is not compatible with common law principles.... ) Brief of Amicus Curiae Chamber of Commerce of the United States of America at 7 8, Vance, 133 S. Ct (No ), 2012 WL Id See Brief of Amicus National Retail Federation, supra note 115, at (contending that the narrow definition allows for litigants to clearly know which employees will be considered supervisors while the broad definition produces unpredictable results).

16 1446 HOUSTON LAW REVIEW [52:5 definition of supervisor was used in the First, Seventh and Eighth Circuits, 119 a broader definition reigned elsewhere. 120 B. The Mack Test: The Broad Definition of the Term Supervisor A broader view of supervisor than had been adopted by the Parkins Court was offered by the EEOC when the enforcement guidance for Vicarious Employer Liability for Unlawful Harassment by Supervisor was released in June of In the EEOC s view, the term supervisor includes individuals with authority to undertake or recommend tangible employment decisions affecting the employee or individuals with authority to direct the employee s daily work activities. 122 Citing to the EEOC Guidelines, the Second Circuit adopted the broader definition of supervisor in Mack v. Otis Elevator Co. 123 The plaintiff in Mack, Yasharay Mack, was an African-American woman who worked for Otis Elevator Company (Otis) as an elevator mechanic s helper alongside six other mechanics. 124 Per the Union s collective bargaining agreement with Otis, because there were five or more workers on the job, one of the mechanics had to be designated mechanic in charge. 125 The mechanic so designated allegedly subjected Mack to continued harassment such as comment[ing] on [her] appearance,... regularly chang[ing] out of his uniform in front of [her,]... boast[ing] to [her] about his sexual exploits[,]... [and] [o]n one occasion, in front of all the other mechanics, [he] grabbed Mack by the 119. See Brief of Amicus Curiae Chamber of Commerce of the United States of America, supra note 116, at 7 (claiming that the narrow definition of supervisor is in use in these circuits) See infra Part III.B (discussing the broader definition of supervisor used in the other circuits) U.S. EQUAL EMP T OPPORTUNITY COMM N, ENFORCEMENT GUIDANCE: VICARIOUS EMPLOYER LIABILITY FOR UNLAWFUL HARASSMENT BY SUPERVISORS 4 (1999), available at The June 1999 Guidance was issued following and interpreting the Ellerth/Faragher decisions. HARRY A. RISSETTO ET AL., MORGAN, LEWIS & BOCKIUS LLP, EEOC RELEASES ENFORCEMENT GUIDANCE ON VICARIOUS EMPLOYER LIABILITY FOR UNLAWFUL HARASSMENT BY SUPERVISORS 1 (1999), available at /white%20paper/b709309d-b278-4baa-94f27c9621ba1b2f_publication.ashx (discussing the implications of the EEOC Guidance). The EEOC s guidance on this topic was last modified on March 29, 2010, and it still retains the broader definition of supervisor. U.S. EQUAL EMP T OPPORTUNITY COMM N, supra, at 1, U.S. EQUAL EMP T OPPORTUNITY COMM N, supra note 121, at Mack v. Otis Elevator Co., 326 F.3d 116, 127 (2d Cir. 2003) Id. at Id.

17 2015] VANCE V. BALL STATE UNIVERSITY 1447 waist, pulled her onto his lap, tried to kiss her[,] and touched her buttocks. 126 Additionally, he made other disparaging sexist and racist comments to her during work. 127 Mack complained about the harassment both to a supervisor and to a union representative, but no action was taken until her father complained on her behalf several months later. 128 Following a meeting, Mack was offered a transfer, but she did not return to work again. 129 Instead, Mack filed suit against Otis, alleging, among other things, a claim of hostile work environment. 130 The district court granted summary judgment for Otis on all claims and, on the relevant claim of hostile work environment, found that Mack had provided an insufficient basis to hold Otis liable for the allegedly discriminatory conduct. 131 Upon review, the Second Circuit began its analysis by determin[ing] whether the person who allegedly created that environment is properly characterized as having been the plaintiff s supervisor. 132 Citing extensively to Ellerth and Faragher, the court rejected the idea that the existence of a tangible employment action is dispositive of whether or not a harasser is deemed a supervisor, holding instead that [v]icarious liability... depends on whether the power economic or otherwise, of the harassing employee over the subordinate victim given by the employer to the harasser enabled the harasser, or materially augmented his or her ability, to create or maintain the hostile work environment. 133 The court explicitly disagreed with the Parkins test, stressing that the Ellerth/Faragher holdings do not require that a tangible employment action be taken to find vicarious liability. 134 The Mack court held that the proper inquiry is not whether or not the employee [had] the authority to make economic decisions concerning... subordinates, but whether the employee s authority enabled or materially augmented the ability of the employee to create a hostile work environment. 135 The court also cited the EEOC s guidance and found the EEOC s 126. Id Id. at Id. at Id. at Id Id Id. at Id. at Id. at Id.

18 1448 HOUSTON LAW REVIEW [52:5 definition of supervisor in this context to be persuasive. 136 Ultimately, the court vacated and remanded the judgment in regard to Mack s hostile environment claim. 137 As seen in subsequent cases citing Mack, the broader definition of supervisor would include the harasser s authority to control the daily work activities of the victim. 138 Opponents contend that the broader definition of supervisor creates unpredictable results and leads to subjective analysis by courts. 139 This definition is also criticized because it enlarges the pool of employees who could be considered supervisors to a state that is beyond the aim of Title VII jurisprudence for imputing vicarious liability. 140 Proponents argue that this definition is in line with earlier judicial decisions 141 and that adopting this definition shows proper deference to EEOC Guidelines. 142 Additionally, proponents contend that this broader definition encourages employers to prevent harassment in the workplace. 143 This prevention, thus, advances the goals of Title VII to prevent discrimination. 144 C. Somewhere in Between: Proposed Alternative Definitions of Supervisor in Vance Attempting to find a middle ground, another definition of the term supervisor was advanced by the respondent in Vance. 145 Claiming that the Seventh Circuit s test [did] not necessarily capture all employees who may qualify as supervisors, 146 respondent went so far as to claim that the 136. Id. at Id. at See, e.g., Dawson v. Entek Int l, 630 F.3d 928, 940 (9th Cir. 2011); Whitten v. Fred s, Inc., 601 F.3d 231, (4th Cir. 2010) See Brief of Amicus National Retail Federation, supra note 115, at 21 ( [This standard] invites circular or results-driven reasoning, and would produce unpredictable, and even contradictory results. ) Id. ( With the exaggerated, unpredictable Mack standard, many more employees will fall into the category of Title VII supervisor; a result which would be incompatible with this Court s principles in its Title VII precedent. (citation omitted)) See Brief of Amici Curiae National Employment Lawyers Association and AARP at 18 26, Vance, 133 S. Ct (No ), 2012 WL (discussing several cases which support this definition) Id. at Id. at Id. at 3, Brief for Respondent at 14 18, Vance, 133 S. Ct (No ), 2012 WL Neither party in Vance supported the narrow definition of supervisor. Vance, 133 S. Ct. at 2457 (Ginsburg, J., dissenting) Brief for Respondent, supra note 145, at 1.

19 2015] VANCE V. BALL STATE UNIVERSITY 1449 agency principles this Court has adopted appear to foreclose the Seventh Circuit position as a complete answer to who is a supervisor. 147 It appears that respondent was concerned about crafting a definition that was in accord with the Court s holding in Faragher regarding the harasser whose authority was limited to assigning daily tasks. 148 Under this proposed compromise between the narrow and broad definitions, a supervisor is one who can take tangible employment actions as well as one who has the authority to control the victim s daily work activities in a way that materially enables the harassment. 149 This definition obviously begs the question of what qualifies as materially enabl[ing] and upon what standards courts would decide supervisory authority based on this new element. 150 Respondent suggested the following five principles as a framework for determining supervisory authority under the proposed test: An employee s status turns on the facts and realities of the workplace, and not on titles, formal job descriptions, or labels. An employee s authority to control the victim s daily work activities must include the power either to increase the victim s workload, or to assign the victim undesirable tasks. An employer is not vicariously liable if the victim is unaware of authority that an employee does have to control her daily activities. The inquiry should consider the extent to which the victim has on-the-scene access to the chain-of-command or whether the alleged harasser is the highest-ranking employee on site. If an employee s authority over the victim s daily activities is temporary or intermittent, vicarious liability is triggered only for harassment that occurs when the employee actually possesses the relevant powers. 151 Respondent found support for this proposal by amici American Council on Higher Education Id. at Id. at Id. at 1 2 (emphasis added) See Mack v. Otis Elevator Co., 326 F.3d 116, (2d Cir. 2003) (discussing whether or not the supervisor s authority materially enabled the harassment) Brief for Respondent, supra note 145, at Brief of Amici Curiae American Council on Education and Other Higher Education Organizations at 13 22, Vance, 133 S. Ct (No ), 2012 WL