Yesterday, the U.S. Supreme Court heard oral argument on what it takes to be a “supervisor” for the purposes of a Title VII discrimination claim.1
The facts of the case, Vance v. Ball State University, go something like this: Maetta Vance was the only African American server in her particular cafeteria. Vance’s sort-of manager used racial epithets about Vance and black students at the school. Vance complained, and the school reprimanded the employee, but found the issue not pervasive or serious enough for further action. Vance subsequently complained to the school that her working conditions were worsening, and again when her hours were cut and she suffered other adverse employment decisions. Vance eventually sued the school for racial discrimination.
Under two previous cases, known as Faragher and Ellerth, employers like Ball State are directly liable for the actions of supervisory employees. Straightforward enough, right? Haha, of course not.
The sticky part – the reason it got all the way to the Supreme Court – is that while Vance’s manager oversaw her daily activities enough to give her the crap jobs after she complained about him, he couldn’t fire her, transfer her, demote her, or otherwise affect her employee status.
Here in the Seventh Circuit,2 where this case was on appeal, employees only count as “supervisors” when they have some kind of authority over hiring, firing, or some other aspect of a person’s job status. The same is true in the First and Eighth Circuits. But in the Second, Fourth and Ninth Circuits, a “supervisor” is basically anyone who has managerial authority over the employee.
That means that an employee like Vance loses her case throughout most of the Midwest and the far Northeast, but would win in New York, the Central Atlantic or anywhere west of Utah. And that means the Supreme Court’s going to have to clear this up.
So yesterday, attorneys for Vance, Ball State, and the government all made their cases, arguing why a supervisor should or shouldn’t have to have control over an employee’s job status for the employer to be on the hook.
Based on my reading of the oral argument transcript (which you can find here), I think the Court’s going to land somewhere just to the side of the current Seventh Circuit rule. The more conservative justices were very wary of putting the supervisor question on some kind of sliding scale. Chief Justice Roberts worried repeatedly about courts having to ask the same question all over again in every case. But the Seventh Circuit’s standard is not likely to survive in its current form. Even Ball State’s attorneys thought it was too employer-friendly.
So this is my fear. What I read between the lines of the argument is that the justices on both sides of the issue were looking for a bright line rule they could put in a neat little package – “a supervisor means ___________” – when the reality is that workplaces just don’t work that way. And when the Supreme Court tries to define moving targets, we often end up with more questions than answers.
The argument that I wish had been made more clearly (or, you know, at all) yesterday is this: the Seventh Circuit’s definition of “supervisor” is not nearly as strict as everyone made it out to be! It’s just being abused. Look, the original definition is this:
…[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.
Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1034-35 (7th Cir. 1998).)
That’s not so bad! The Parkins court gave a decent list of what had generally consisted of supervisory powers in the past, but left open the possibility that, in some cases, an employee could be a supervisor through other exercises of authority. That’s what words like “primarily” mean!
The problem is that, as time goes on, busy courts focus on the concrete list of “hire, fire, etc.” rather than the open spaces where other actions could lead to employer liability. And then everyone cries foul – “This rule is too harsh!” Well, no, it’s just not being applied the right way.
And the Supreme Court is the perfect place for that point to be made. Leave the rule alone – but remind everyone that there is still room, under certain facts, for other forms of control to turn you into a supervisor. It would keep employers on their toes without opening up the world to liability.
The Takeaway for You
The takeaway for Illinois employers is this: you will most likely be more open to liability for your managerial employees when the Supreme Court decides Vance than you were yesterday. And that means that hiring, promoting and training those middle-level employees is more crucial than ever.
I just can’t say it enough: TRAIN YOUR MANAGERS!! It keeps coming up over and over again, from the cat’s paw case to this NLRB business to now – they are your front line, and you will rise or fall with them. Make sure they’re the right people for the job, and then train the bejeezus out of them.