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Supreme Court Defines—Who Is a Supervisor in Employment Matters

Posted on Tue, Aug 06, 2013 @ 01:59 PM

Jack B. Harrisonby Jack B. Harrison


On June 24, 2013, the United States Supreme Court issued an important decision regarding the reach of Title VII in an employment context.  In Vance, the Court was faced with the question of whether the “supervisor” liability rule established by the Court in earlier cases applied to harassment by employees who had the authority to direct and oversee an employee’s daily work or whether the rule was limited to only those “supervisors” having the power to “hire, fire, demote, promote, transfer, or discipline” the employee.  In a 5-4 decision, with Justice Alito writing the opinion of the Court, the Court held that an employee is a “supervisor” for purposes of Title VII only where the employee has the power to take tangible employment actions against the complaining employee (i.e. having the power to “hire, fire, demote, promote, transfer, or discipline”).


Maetta Vance, an African-American woman, worked for Ball State’s Banquet and Catering Department for over 15 years.  For the entire time that Ms. Vance was employed in that capacity, her direct supervisor was Bill Kimes, general manager of the Banquet and Catering Department.  In 2005, Ms. Vance complained about treatment she had received in the workplace at Ball State.  She alleged that she had been threatened by Saundra Davis, catering specialist, and that another employee, Connie McVicker, had directed racial epithets toward her.  Ball State investigated Ms. Vance’s allegations and, as a result, issued a written warning to Ms. McVicker.  Regarding Ms. Vance’s complaints against Ms. Davis, the investigation resulted in conflicting accounts of what had occurred between Ms. Vance and Ms. Davis.  As a result of the conflicting information received during the investigation, Ball State counseled both employees regarding their behavior.  Throughout 2006 and 2007, Ms. Vance continued to complain about her treatment by Ms. McVicker and Ms. Davis.

Ultimately, Ms. Vance filed a lawsuit against Ball State, Ms. Davis, Ms. McVicker, and Mr. Kimes.  In part, Ms. Vance claimed that the conduct of Ms. Davis created a hostile working environment for which Ball State should be held liable, because Ms. Davis was a supervisor. 

Ball State moved for summary judgment on all claims brought by Ms. Vance.  Based on precedents of both the Supreme Court and the Seventh Circuit Court of Appeals, the district court concluded that Ball State could not be held liable under Ms. Vance’s hostile work environment claims because Ms. Davis was not Ms. Vance's supervisor, in that Ms. Davis did not have the power to "hire, fire, demote, promote, transfer or discipline" Ms. Vance.  Thus, the district court held that the acts of Ms. Davis could not be imputed to Ball State, which would have given rise to supervisor liability under Title VII.

Ms. Vance appealed the district court's decision to the Seventh Circuit Court of Appeals.  The Court of Appeals affirmed the decision of the district court, concluding that because Ms. Davis did not have the power to "hire, fire, demote, promote, transfer or discipline" Ms. Vance, she did not have sufficient authority to be her “supervisor” for the purposes of liability under Title VII.


In its decision, the Supreme Court determined that the test for who is to be considered a “supervisor” for Title VII purposes is the bright-line standard adopted by the Seventh Circuit.  Under this test, an employer can be vicariously liable under Title VII for the actions of one of its employees "when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a 'significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, a decision causing a significant change in benefits.'"  With this decision, the Court attempted to provide clear guidance to employers and employees regarding who qualifies as a supervisor for purposes of Title VII.  In adopting this standard, the Court rejected the position the set forth by the EEOC in its Enforcement Guidance.  Under the EEOC’s Enforcement Guidance, a supervisor is described as someone who either has the authority to undertake or recommend tangible employment decisions affecting the employee or has the authority to direct the employee's daily work activities.  In its rejection of the EEOC position, the Court described this position as "a study in ambiguity".

By adopting a bright-line rule, the Court indicated that lower courts should be able to determine early on in Title VII litigation whether any basis exists for imposing vicarious supervisory liability on an employer, by determining whether or not the employee in question had the power to "hire, fire, demote, promote, transfer or discipline" the complaining employee.


The decision by the Court in Vance is good news for employers, in that it limits circumstances where vicarious liability may be imposed under Title VII and provides clear guidance as to what those circumstances are.  However, the decision does not impact the ongoing responsibilities imposed on employers to provide a workplace that is free from discrimination and discriminatory hostility.  Prudent employers should continue to provide regular periodic training to their workforce regarding discrimination and harassment, with additional training to their managers, including those managers where there may be a question as to whether they are "supervisors" for purposes of Title VII.  Employers should be certain that the training provided makes it clear that all managers have an obligation to take steps to prevent and to correct any discriminatory or harassing behavior.

Tags: Employment Law, Title VII

The EEOC's 5 Recommendations on Avoiding Liability When Utilizing Criminal Background Checks

Posted on Wed, Jun 06, 2012 @ 09:01 AM

Susan R. Bellby Susan R. Bell

If you are an employer, you, like most other employers, probably ask job applicants whether they have had any criminal convictions.  Most employers view a history of criminal conduct just as relevant as, say, a person’s education or job history.  So, is there any legal problem asking about criminal convictions? 

Maybe, according to the Equal Employment Opportunity Commission (EEOC).  On April 25, 2012, the EEOC issued new enforcement guidance regarding the use of arrest or conviction records in employment decisions.  The EEOC’s new guidelines are rooted in the position that such use of criminal records has a disparate impact on certain minorities.  In other words, the EEOC finds that a seemingly neutral criminal background check policy, when applied to all job applicants and/or employees, will disproportionately screen out individuals based upon race or national origin, thus having a disproportionate effect on some minorities.  In the EEOC’s view, this disparate impact may violate Title VII.

The EEOC notes that arrest and incarceration rates are particularly high for African American and Hispanic men, and cites statistical studies predicting that 1 in 17 white men will likely serve time in prison during their lifetime, while the numbers are 1 in 6 for Hispanic men, and 1 in 3 for African American men.  Although not expressly discussed, the EEOC’s Guidance is based almost exclusively on statistical evidence regarding minority males.  Other studies – not discussed by the EEOC -- indicate that while arrest and incarceration rates for minority females are higher than for white females, the rates are not nearly as high or disparate as those reported for minority men.  Perhaps the EEOC’s silence on minority females indicates a belief that a minority female may find making a disparate impact claim more difficult.

In order to avoid liability under Title VII, the EEOC recommends that employers conducting criminal background checks take the following steps:

1.     Treat all applicants with comparable criminal records equally

Any policy requiring the exclusion of individuals based upon past criminal conduct must be applied equally without consideration of race or ethnic origin.  Be consistent.

2.     Avoid blanket no-hire policies

Policies that eliminate all applicants with any criminal conviction are overbroad and may result in a charge alleging a violation of Title VII.  Employers should weigh the following: (a) the nature and gravity of the offense; (b) the amount of time that has passed since the offense or completion of the sentence; and (c) the nature of the job held or sought. 

In addition, the EEOC encourages employers to conduct an individualized assessment to include (a) informing the individual that he may be excluded based upon his criminal history; (b) providing an opportunity for the individual to demonstrate that exclusion should not apply under his particular circumstances; and (c) considering whether the individual’s additional information demonstrates that an exception to the policy is appropriate.

3.     Ensure that the specific offense used to bar consideration for employment is job
         related and consistent with business necessity.

Narrowly tailor the policy to identify criminal conduct with a clear nexus to the job position at issue, and document the justification for the policy and procedures.

4.    Avoid the use of arrest records when making employment decisions.

Because an individual is presumed innocent until proven guilty, an arrest record alone does not prove that criminal conduct has occurred.  Accordingly, an exclusion based on an arrest record alone “is not job related and consistent with business necessity.” Nevertheless, the EEOC recognizes that an arrest record “may, in some circumstances, trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action,” and again encourages an individualized assessment.

5.     Validate the criminal conduct exclusion for each relevant position. 

The EEOC instructs employers to validate any criminal conduct exclusion for a particular position.  Notably, however, the EEOC recognizes that currently, “[a]lthough there may be social science studies that assess whether convictions are linked to future behaviors, traits, or conduct with workplace ramifications, and thereby provide a framework for validating some employment exclusions, such studies are rare. . . .” Where the use of formal validation is not possible or readily available, employers are encouraged to use selection/exclusion procedures that are as job related as possible and that will eliminate disparate impact.

Of particular note is the EEOC’s position that because Title VII preempts state and local laws, the fact that an employer adopts a particular policy in order to comply with a state or local law is no defense, should the EEOC find the policy is neither job related nor consistent with business necessity.  However, the adoption of a policy based upon a federal law or regulation is a defense to Title VII liability, as long as the employer has not exceeded the mandates of that law or regulation.

So, can an employer avoid potential liability by simply not conducting criminal background checks?  While forgoing such investigations would avoid scrutiny of this aspect of the employer’s hiring practices under Title VII, the employer would increase its risk of hiring persons who may commit crimes against the employer, other employees, or customers, and thereby expose the employer to claims from the crime victims.  The better course: perform a criminal background check that is reasonable, job related, and consistent.

Tags: Criminal Background Checks, EEOC, Title VII