In 2013, Supreme Court Guts Supervisory Harassment Claims for Low Wage Workers

Earlier this year, the Supreme Court lobbed a devastating blow to the rights of marginalized workers in Vance v. Ball State.  Addressing the thorny issue of employer liability for discriminating supervisors, the decision poses significant new barriers to low-level employees experiencing discrimination from direct supervisors.

Supervisory harassment has long triggered stricter liability for employers than harassment by co-workers.  When supervisors use the authority of their position to discriminate, their employer becomes vicariously liable for the supervisor’s acts.  While Vance leaves this basic logic intact, it dramatically limits who qualifies as a “supervisor.”

Before Vance, “supervisors” could be either people who oversaw the daily activities of other employees, or who had the power to hire, fire, promote or demote their subordinates.  After Vance, an employer can only be held vicariously liable for discrimination carried out by supervisors with power to take “tangible employment action” (such as hiring, firing and promotion).  The Court has effectively eliminated vicarious liability for harassment carried out by all other types of managers, whose unlawful discrimination is now treated with the same (lesser) level of scrutiny as co-worker harassment.

The Court’s reasoning ignores the realities of today’s workplace.  Middle managers, foremen, team leaders, and shift supervisors who oversee their subordinates’ work, but don’t have the ability to fire them, wield enormous power.  They have the ability to commit much graver damage on the psyche and well-being of a subordinate than a co-worker.  Middle managers can get their subordinates fired, even when they don’t have the authority to fire them.   That’s why supervisory harassment has been treated so differently by the law than co-worker harassment.

Take the construction worker whose team leader hurls racial epithets at him when giving him work orders, causing him to make mistakes.  Or the immigrant worker on the factory line who is groped by her line supervisor, with no one to translate her complaint but the supervisor himself.  Or even more troubling, take the worker who refuses her direct supervisor’s requests for sex, and who is given harder work as a result.  In these cases, the supervisor may not have the ability to hire or fire.  But they have the ability to intimidate, to make threats, and to carry out those threats if a subordinate doesn’t submit to their harassment.

Moreover, many workers rarely interact with the individuals who have the authority to hire and fire them.  In fact, their only conduit to the hiring manager or executive leadership may be an immediate supervisor.   Workers may be instructed not to approach higher level management, or may even be turned away or disciplined when they attempt to do so.  This is especially the case when workers are in entry level or low-wage positions.  It is particularly troubling when workers have limited English proficiency, and their harasser is the only supervisor with whom they can communicate.

The Vance decision overlooks the experiences of the most vulnerable and low-wage workers, who are frequently supervised by individuals lacking the ability to make hiring and firing decisions.  Employers put hierarchies in place to streamline management, and they should be held accountable for them.  Instead, Vance incentivizes employers to delegate hiring and firing decision-making to a small handful of individuals instead of providing better training and stronger vetting for all managers.  Perversely, the decision enables higher level employees closer to decision-making power to bring supervisory claims more easily than their lower level counterparts.  The Supreme Court has judged these more vulnerable workers’ real and salient fear of supervisory harassment less worthy of protection.  Surely Title VII was not intended to provide less protection against discrimination to those most in need of it.

Sheerine Alemzadeh is an employment attorney at the Chicago Alliance Against Sexual Exploitation where she primarily represents low-wage workers from communities of color.