The U.S. Supreme Court agrees to take a look at a long-standing circuit split under Title VII, about how much authority an agent of an employer must exercise over an employee to be deemed a “supervisor” for purposes of vicarious liability for sex or other harassment. The Tenth Circuit, meanwhile, remands a race harassment case for trial, finding sufficient evidence that the harassment was severe.
Vance v, Ball State Univ, 646 F.3d 461 (7th Cir. 2011): One legacy of the Supreme Court decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), has been a split theory of liability in harassment cases, depending on whether the alleged harasser is deemed a “supervisor” or a “co-worker.” When the hostile work environment is created by co-workers, a jury finds the employer liable only if the employee proves that that management failed to take reasonable measures to prevent and correct harassment. But if the harasser is a supervisor, then liability is imputed to the employer directly – and the burden shifts to the employer to prove that it had an effective anti-harassment policy and that the employee failed to reasonably avail herself of it. The burden-shift makes supervisor liability cases far easier than co-worker cases to prove.
The federal courts of appeals have been divided in the 14 years since Faragher and Ellerth about how much authority an agent must exercise over an employee to be a “supervisor.” In some circuits, supervisor authority is proved by evidence that the employer vests the agent with authority to direct and oversee the employee’s daily work. In others, supervisor status is confined to those who have the power to “hire, fire, demote, promote, transfer, or discipline” the employee. Some circuits (including the Seventh Circuit) have cases going both ways. (Compare Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498 (7th Cir. 2004), with Doe v. Oberweis Dairy, 456 F.3d 704, 98 FEP 958 (7th Cir. 2006)).
The Supreme Court took a case from the Seventh Circuit to finally resolve the split. Vance claimed that three persons in her workplace fostered a racially-hostile work environment, including one employee (named Davis) who allegedly hit her, yelled at her and used racial epithets in her presence. Although Vance claimed that Davis was a “supervisor” who directed her day-to-day work – and who was salaried, instead of hourly – the Seventh Circuit held that without hiring and firing authority, Davis was not Vance’s “supervisor.” The Supreme Court, reviewing these facts, can now mark the dividing-line that has eluded the lower courts.
Hernandez v. Valley View Hospital Association, No. 11-1244 (10th Cir. June 26, 2012): A Latino employee complained that her supervisor and a co-worker jointly humiliated her, often taking the form of racially-derogatory jokes. (“[D]o you know why Mexicans don’t BBQ? Because the beans go through the grill.” “[D]o you know why Mexicans and Latinos make tamales for Christmas? So they can have something to unwrap.”) Latinos in the workplace were, reportedly, often called out on work violations or accused of taking food without paying for it. Complaints to management led to nothing. But when the plaintiff pushed back, telling others that she was suffering abuse because she was “not white enough,” she herself was haled into Human Resources and suspended for making a racial remark.
The Tenth Circuit, reversing summary judgment, holds that the concentration of harassing events over a little more than a year may constitute a hostile work environment:
“During the approximately fourteen months that Mr. Lillis supervised her, Mr. Lillis and Mr. Stillahn repeatedly subjected her to racially insensitive and offensive comments and jokes, including the Mexican-barbeque comment three to five times, the Mexican-tamale comment three or four times, and the black-Latino marriage comment at least once. In addition, Mr. Lillis accused her family member of being a murderer based on Ms. Hernandez’s surname, accused her family of not paying for lunch, and referred to a black cook using a racial epithet. Ms. Hernandez promptly and frequently complained to her supervisors about the offensiveness of the racial comments.”
The panel held that even those remarks that might not have been specifically racial (such as imputations of dishonesty and criminality) might still constitute part of a racially-hostile work environment. On the other hand, the panel affirmed summary judgment on a separate constructive discharge claim.