Who's the Boss?

Earlier this week, the Supreme Court looked into the question of who counts as a “supervisor” for the purpose of employment law. If you’re not an employment-law watcher, it sounds like the legal equivalent of how many angels can dance on the head of a pin. But the answer is going to have real-life consequences for hundreds of thousands of people. Let me illustrate. 

Imagine this: You’re a teenage girl working at a pizza place. You’re often scheduled to work with John, a leering guy in his twenties who has the same title that you do. But because John’s been working there six months longer, and is ten years older than you are, the assistant manager often leaves him in charge of the shift. John can’t officially fire you—only the assistant manager can do that—but he gets to tell you what to do on a given day.

Here's the horrifying part: John gropes you grossly whenever he’s alone with you on the floor, in ways too explicit to be listed here. When you’re standing at the cash register, if you’re not vigilant, out of nowhere he’ll rub up behind you so closely you can feel his “stuff” poking you, as you later tell the lawyers. He tries to pin you alone in the freezer. He propositions you constantly, whispering things about your body that you’ve never even thought about before. One morning, he wrestles you to the floor when you two are there alone—but fortunately the assistant manager walks in and tells you two to stop horsing around, letting you escape. You’ve tried telling the assistant manager, to the best of your ability, that you don’t want to be scheduled alone with John; you’re a teenage girl, humiliated by this invasive attention, so you’re not very articulate about why he makes you so uncomfortable. She tells you to stop being so sensitive, and cuts down your hours. One day John puts a knife to your throat, telling you that you know you want it, and go ahead, now say no. You quit. After a few months, unable to sleep for the nightmares, a friend insists that you go talk to the Equal Employment Opportunity Commission. You end up in a lawsuit.

If John was officially your supervisor, according to current employment case law that's grown out of the 1964 Civil Rights Act's Title VII, the restaurant would automatically be liable for what could be defined as sexual harassment, if indeed you can prove all that happened in a court of law. A long line of employment case law says that a supervisor is the employer’s representative: If he or she is wielding the employer’s authority, that employer is liable for his or her decisions and behavior toward you, as Lyle Denniston explains very nicely at SCOTUSblog.

But if John was just a colleague, you’ll also have to prove that you made your case to everyone up the chain of command—to the assistant manager, and if she didn’t respond, then to the hotline or whatever other easily available complaint mechanism the restaurant was required to offer in case something like this happened. (If they didn't have an effective complaint mechanism, they're liable, but that's another set of cases, now called Farragher/Ellerth. By the way, if you want a quick history of employment law, sexual harassment law in particular, I wrote and posted one with my former employer, the Schuster Institute for Investigative Journalism, here.)

Okay, second example: Imagine you're running a small office, and you travel often for the business. Not everyone gets along, of course, but you expect them to work it out like adults. But one day you come back from a few weeks away to discover that the new accountant and the office manager have been going at each other using incredibly offensive rhetoric. Each tells a different story of who started it, which makes you wonder how you could have hired children who talk about "who started it." But before you can de-escalate the situation, one quits and files a complaint with the EEOC, alleging that her “supervisor” harassed her based on sex. The evidence that the other one was a supervisor: She had the keys to the office, and no one else did. 

The first story—a real case, by the way, that the teen girl won—is the scenario envisioned by plaintiff-side employment lawyers. Employees can face some truly egregious harassment that really does breach the “compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." If you can’t go to work for fear of being raped by the guy your employer put in charge for the day, surely that’s a violation of Title VII of the 1964 Civil Rights Act. That side is hoping that the Supreme Court will offer a broad definition of “supervisor.” And some of the appeals courts have indeed interpreted the term "supervisor" to include someone like John. 

But the case that the Court heard this week happened in the Seventh Circuit, which has ruled that to be classified as a “supervisor,” an employee must have the power to hire, fire, demote, promote, transfer, or discipline the other. Under that definition, John wouldn't count. 

The second story is the nightmare of employers everywhere: You unwittingly hire a couple of petulant troublemakers who perpetually blame others for their own misery. One of them uses expletives and insults against a protected class. Next thing you know, you’re dragged into an endless and expensive federal lawsuit. Surely the federal court system isn’t there to work out such minor squabbles. And so the defendant-side employment bar is hoping for a ruling that defines a supervisor as someone who has much more than just “day-to-day oversight,” as one of the circuits has put it. 

So where will the Supreme Court draw the line? Who is a supervisor? The federal courts, I’ve been told by employment lawyers on both sides, “hate” employment cases. They don’t want to be the employment office of last resort, sorting out petty quarrels. SCOTUS's goal has long been to come up with rules that will ensure the federal courts only have to deal with cases in the first category, where the allegations are about serious and life-changing harassment that only an appallingly negligent employer would have let continue. In the case the Court heard this week, Vance v. Ball State University, the facts sound pretty awful—but they are much closer to the second story. As the LA Times reported,

The justices heard the case of Maetta Vance, a black food-service worker at Ball State University in Indiana who claimed that Saundra Davis, a white woman who served as a catering specialist, had slapped her and referred to her as "Sambo" and "Buckwheat."

Yes, that's pretty nasty, and if it's all true, the other woman should have lost her job. But is it liably nasty? Was it so bad that Vance didn't have a fair shot at earning a living? And was Davis her colleague or her supervisor? Here are some excerpts from Adam Liptak's report on the oral arguments at The New York Times:

Justice Elena Kagan, perhaps reflecting on her experiences as dean of Harvard Law School, [said]:

“Professors don’t have the ability to fire secretaries, but professors do have the ability to make secretarial lives living hells,” she said, suggesting that the Seventh Circuit’s approach was too limited.

According to several reports, Scalia seemed to be arguing for the Seventh Circuit’s definition, and was frustrated that the Ball State University advocate wouldn’t agree with him:

“And you don’t even defend that,” he said. “So there is nobody here defending the Seventh Circuit.”

…Chief Justice John G. Roberts Jr. tried to test the limits of the more flexible approach, asking if a senior employee allowed to pick the music in a workplace was a supervisor.

“If you don’t date me,” he imagined such an employee saying to another, “it’s going to be country music all day long.”

Daniel R. Ortiz, a lawyer for Ms. Vance, said such conduct would not be severe enough to qualify.

Justice Scalia said “hard rock” might present a more difficult question. Justice Samuel A. Alito Jr. asked about Wagner’s operas.

Chief Justice Roberts said having to listen to music, all day long, that the listener found unpleasant could be more severe than being instructed that “you’re going to be cutting the celery rather than, you know, baking the bread.”

Justice Alito asked whether “chopping onions all day would be enough” to be considered severe, and Mr. Ortiz responded yes.

“How about chopping other things, just chopping?” Justice Alito continued. “You are the sous chef. You are going to be chopping all day every day. Would that be enough?”

It depends, Mr. Ortiz responded.

It depends—that’s the Supreme Court’s idea of hell, really, in employment cases. The Court wants a bright line, as the lawyers like to put it, to make it clear which cases get into court and which can be easily thrown out on summary judgment, before discovery, depositions, or juries get involved. So which line will it be: Day-to-day oversight, or power to hire, fire, and discipline?

In fact, several of the reporters suggest that the Court might have decided this particular case was too close to my second example to even bother using to decide this urgent and complex issue. From the LA Times:

Justice Ruth Bader Ginsburg said Vance appeared to have a weak case, even if the catering specialist were deemed to be her supervisor. The Obama administration also stopped short of saying Vance should win her case.

By the end of oral arguments, the justices sounded unsure whether they should use Vance's case to make a major ruling on workplace harassment laws.

The thing is, both sides' concerns are genuinely important. It's a serious problem if, when you go to work, someone can turn your daily life into hell, making it impossible for you to make a living without misery. And it's a serious problem if sullen or hypersensitive employees look around for a Title VII violation every time their performance reviews don't go brilliantly. But Professor Theresa Beiner's work on summary judgment suggests that the federal courts are too quick to throw out potential cases, making it too hard for potential plaintiffs to get a hearing from a jury of their peers. The person who can make your job utterly miserable isn't only the person who can hire, fire, promote, or demote you. It's anyone who has been put in charge of your work. Employers do have a responsibility to ensure that the person cracking the whip isn't misusing that authority. If the Court does rule on Vance, let's hope they keep that definition broad.

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