VANCE v. BALL STATE UNIVERSITY
Maetta Vance began working for University Dining Services at Ball State University in 1989 as a substitute server. She was the only African-American working in the department. Vance submitted a complaint to the University when a coworker used a racial epithet directed at her and African-American students at the University. The University issued the coworker a written warning, but following a series of incidents that resulted in Vance reporting that she felt unsafe in her workplace, the University investigated but found no basis for action. On October 3, 2006, Vance sued Ball State University in federal district court for lessening her work duties and ability to work overtime, forcing her to work through her breaks, and unjustly disciplining her. After filing the suit, Vance claimed her work environment continued to worsen, but the University’s investigations did not yield enough evidence to discipline anyone.
The University moved for summary judgment. The district court granted the motion and held that there was not enough evidence to prove a hostile work environment and that the University was not liable for the actions of individual coworkers. Vance appealed, and the U.S. Court of Appeals for the Seventh Circuit affirmed the judgment of the lower court.
Can a coworker who is vested with the authority to oversee the daily work of another worker be considered a supervisor for the purpose of determining employer liability for harassment?
Legal provision: Civil Rights Act of 1964
No. Justice Samuel A. Alito, Jr. delivered the opinion for the 5-4 majority. The Court held that, for the purposes of liability for workplace harassment under Title VII, the definition of a “supervisor” is limited to a person empowered to take tangible employment action against the victim. Because Title VII creates a distinction between an employer’s liability for the actions of a coworker and the actions of a supervisor, it is important to have clear distinction between the two definitions to aid in the application of the Title VII guidelines. Allowing the colloquial usage of “supervisor” that tends to conflate the concept of supervisor and coworker lacks the necessary specificity. The Court held that, to be considered a supervisor for the purposes of workplace employer liability, an individual must have the power to hire, fire, fail to promote, reassign to a task with significantly different duties, or cause a significant change in benefits available to the victim.
In his concurring opinion, Justice Clarence Thomas wrote that the majority’s opinion establishes the “narrowest and most workable rule” for ruling on an employer’s liability for harassment.
Justice Ruth Bader Ginsburg wrote a dissent in which she argued that the majority’s opinion ignores the conditions of the modern workforce and that a more workable definition of a supervisor would be that offered by the Equal Employment Opportunity Commission (EEOC): anyone with the authority to direct an employee’s daily activities. She argued that although a supervisor may not have the authority to discharge or demote the victim, a supervisor who can effect change in the victim’s working conditions has similar power over the victim. The EEOC’s definition reflects the agency’s informed experience of the modern workplace and the importance of the specific facts of an employee’s duties and relationship to other workers who can enable harassment. The majority’s opinion, however, adopts an inflexible standard that is not responsive to these concerns. Justice Stephen G. Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan joined in the dissent.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
MAETTA VANCE, PETITIONER v. BALL STATE UNIVERSITY
on writ of certiorari to the united states court of appeals for the seventh circuit
[June 24, 2013]
Justice Alito delivered the opinion of the Court.
In this case, we decide a question left open in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998) , and Faragher v. Boca Raton, 524 U. S. 775 (1998) , namely, who qualifies as a “supervisor” in a case in which an employee asserts a Title VII claim for workplace harassment?
Under Title VII, an employer’s liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Id., at 807; Ellerth, supra, at 765. Under this framework, therefore, it matters whether a harasser is a “supervisor” or simply a co-worker.
We hold that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim, and we therefore affirm the judgment of the Seventh Circuit.I
Maetta Vance, an African-American woman, began working for Ball State University (BSU) in 1989 as a substitute server in the University Banquet and Catering division of Dining Services. In 1991, BSU promoted Vance to a part-time catering assistant position, and in 2007 she applied and was selected for a position as a full-time catering assistant.
Over the course of her employment with BSU, Vance lodged numerous complaints of racial discrimination and retaliation, but most of those incidents are not at issue here. For present purposes, the only relevant incidents concern Vance’s interactions with a fellow BSU employee, Saundra Davis.
During the time in question, Davis, a white woman, was employed as a catering specialist in the Banquet and Catering division. The parties vigorously dispute the precise nature and scope of Davis’ duties, but they agree that Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. See No. 1:06–cv–1452–SEB–JMS, 2008 WL 4247836, *12 (SD Ind., Sept. 10, 2008) (“Vance makes no allegations that Ms. Davis possessed any such power”); Brief for Petitioner 9–11 (describing Davis’ authority over Vance); Brief for Respondent 39 (“[A]ll agree that Davis lacked the authority to take tangible employments [sic] actions against petitioner”).
In late 2005 and early 2006, Vance filed internal complaints with BSU and charges with the Equal Employment Opportunity Commission (EEOC), alleging racial harassment and discrimination, and many of these complaints and charges pertained to Davis. 646 F. 3d 461, 467 (CA7 2011). Vance complained that Davis “gave her a hard time at work by glaring at her, slamming pots and pans around her, and intimidating her.” Ibid. She alleged that she was “left alone in the kitchen with Davis, who smiled at her”; that Davis “blocked” her on an elevator and “stood there with her cart smiling”; and that Davis often gave her “weird” looks. Ibid. (internal quotation marks omitted).
Vance’s workplace strife persisted despite BSU’s attempts to address the problem. As a result, Vance filed this lawsuit in 2006 in the United States District Court for the Southern District of Indiana, claiming, among other things, that she had been subjected to a racially hostile work environment in violation of Title VII. In her complaint, she alleged that Davis was her supervisor and that BSU was liable for Davis’ creation of a racially hostile work environment. Complaint in No. 1:06–cv–01452–SEB–TAB (SD Ind., Oct. 3, 2006), Dkt. No. 1, pp. 5–6.
Both parties moved for summary judgment, and the District Court entered summary judgment in favor of BSU. 2008 WL 4247836, at *1. The court explained that BSU could not be held vicariously liable for Davis’ alleged racial harassment because Davis could not “ ‘hire, fire, demote, promote, transfer, or discipline’ ” Vance and, as a result, was not Vance’s supervisor under the Seventh Circuit’s interpretation of that concept. See id., at *12 (quoting Hall v. Bodine Elect. Co., 276 F. 3d 345, 355 (CA7 2002)). The court further held that BSU could not be liable in negligence because it responded reasonably to the incidents of which it was aware. 2008 WL 4247836, *15.
The Seventh Circuit affirmed. 646 F. 3d 461. It explained that, under its settled precedent, supervisor status requires “ ‘the power to hire, fire, demote, promote, transfer, or discipline an employee.’ ” Id., at 470 (quoting Hall, supra, at 355). The court concluded that Davis was not Vance’s supervisor and thus that Vance could not recover from BSU unless she could prove negligence. Finding that BSU was not negligent with respect to Davis’ conduct, the court affirmed. 646 F. 3d, at 470–473.II A
Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). This provision obviously prohibits discrimination with respect to employment decisions that have direct economic consequences, such as termination, demotion, and pay cuts. But not long after Title VII was enacted, the lower courts held that Title VII also reaches the creation or perpetuation of a discriminatory work environment.
In the leading case of Rogers v. EEOC, 454 F. 2d 234 (1971), the Fifth Circuit recognized a cause of action based on this theory. See Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 –66 (1986) (describing development of hostile environment claims based on race). The Rogers court reasoned that “the phrase ‘terms, conditions, or privileges of employment’ in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination.” 454 F. 2d, at 238. The court observed that “[o]ne can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers.” Ibid. Following this decision, the lower courts generally held that an employer was liable for a racially hostile work environment if the employer was negligent, i.e., if the employer knew or reasonably should have known about the harassment but failed to take remedial action. See Ellerth, 524 U. S., at 768–769 (Thomas, J., dissenting) (citing cases).
When the issue eventually reached this Court, we agreed that Title VII prohibits the creation of a hostile work environment. See Meritor, supra, at 64–67. In such cases, we have held, the plaintiff must show that the work environment was so pervaded by discrimination that the terms and conditions of employment were altered. See, e.g., Harris v. Forklift Systems, Inc., 510 U. S. 17, 21 (1993) .B
Consistent with Rogers, we have held that an employer is directly liable for an employee’s unlawful harassment if the employer was negligent with respect to the offensive behavior. Faragher, 524 U. S., at 789. Courts have generally applied this rule to evaluate employer liability when a co-worker harasses the plaintiff. 1
In Ellerth and Faragher, however, we held that different rules apply where the harassing employee is the plaintiff’s “supervisor.” In those instances, an employer may be vicariously liable for its employees’ creation of a hostile work environment. And in identifying the situations in which such vicarious liability is appropriate, we looked to the Restatement of Agency for guidance. See, e.g., Meri
tor, supra, at 72; Ellerth, supra, at 755.
Under the Restatement, “masters” are generally not liable for the torts of their “servants” when the torts are committed outside the scope of the servants’ employment. See 1 Restatement (Second) of Agency §219(2), p. 481 (1957) (Restatement). And because racial and sexual harassment are unlikely to fall within the scope of a servant’s duties, application of this rule would generally preclude employer liability for employee harassment. See Faragher, supra, at 793–796; Ellerth, supra, at 757. But in Ellerth and Faragher, we held that a provision of the Restatement provided the basis for an exception. Section 219(2)(d) of that Restatement recognizes an exception to the general rule just noted for situations in which the servant was “aided in accomplishing the tort by the existence of the agency relation.” 2 Restatement 481; see Faragher, supra, at 802–803; Ellerth, supra, at 760–763.
Adapting this concept to the Title VII context, Ellerth and Faragher identified two situations in which the aided-in-the-accomplishment rule warrants employer liability even in the absence of negligence, and both of these situations involve harassment by a “supervisor” as opposed to a co-worker. First, the Court held that an employer is vicariously liable “when a supervisor takes a tangible employment action,” Ellerth, supra, at 762; Faragher, supra, at 790—i.e., “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U. S., at 761. We explained the reason for this rule as follows: “When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation. . . . A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors.” Id., at 761–762. In those circumstances, we said, it is appropriate to hold the employer strictly liable. See Faragher, supra, at 807; Ellerth, supra, at 765.
Second, Ellerth and Faragher held that, even when a supervisor’s harassment does not culminate in a tangible employment action, the employer can be vicariously liable for the supervisor’s creation of a hostile work environment if the employer is unable to establish an affirmative defense. 3 We began by noting that “a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation.” Ellerth, supra, at 763; see Faragher, 524 U. S., at 803–805. But it would go too far, we found, to make employers strictly liable whenever a “supervisor” engages in harassment that does not result in a tangible employment action, and we therefore held that in such cases the employer may raise an affirmative defense. Specifically, an employer can mitigate or avoid liability by showing (1) that it exercised reasonable care to prevent and promptly correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities that were provided. Faragher, supra, at 807; Ellerth, 524 U. S., at 765. This compromise, we explained, “accommodate[s] the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII’s equally basic policies of encouraging forethought by employers and saving action by objecting employees.” Id., at 764.
The dissenting Members of the Court in Ellerth and Faragher would not have created a special rule for cases involving harassment by “supervisors.” Instead, they would have held that an employer is liable for any employee’s creation of a hostile work environment “if, and only if, the plaintiff proves that the employer was negligent in permitting the [offending] conduct to occur.” Ellerth, supra, at 767 (Thomas, J., dissenting); Faragher, supra, at 810 (same).C
Under Ellerth and Faragher, it is obviously important whether an alleged harasser is a “supervisor” or merely a co-worker, and the lower courts have disagreed about the meaning of the concept of a supervisor in this context. Some courts, including the Seventh Circuit below, have held that an employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the victim. E.g., 646 F. 3d, at 470; Noviello v. Boston, 398 F. 3d 76, 96 (CA1 2005); Weyers v. Lear Operations Corp., 359 F. 3d 1049, 1057 (CA8 2004). Other courts have substantially followed the more open-ended approach advocated by the EEOC’s Enforcement Guidance, which ties supervisor status to the ability to exercise significant direction over another’s daily work. See, e.g., Mack v. Otis Elevator Co., 326 F. 3d 116, 126–127 (CA2 2003); Whitten v. Fred’s, Inc., 601 F. 3d 231, 245–247 (CA4 2010); EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999), 1999 WL 33305874, *3 (hereinafter EEOC Guidance).
We granted certiorari to resolve this conflict. 567 U. S. ___ (2012).III
We hold that an employer may be vicariously liable for an employee’s unlawful harassment only 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, or a decision causing a significant change in benefits.” Ellerth, supra, at 761. We reject the nebulous definition of a “supervisor” advocated in the EEOC Guidance 4 and substantially adopted by several courts of appeals. Petitioner’s reliance on colloquial uses
of the term “supervisor” is misplaced, and her contention that our cases require the EEOC’s abstract definition is simply wrong.
As we will explain, the framework set out in Ellerth and Faragher presupposes a clear distinction between supervisors and co-workers. Those decisions contemplate a unitary category of supervisors, i.e., those employees with the authority to make tangible employment decisions. There is no hint in either decision that the Court had in mind two categories of supervisors: first, those who have such authority and, second, those who, although lacking this power, nevertheless have the ability to direct a co-worker’s labor to some ill-defined degree. On the contrary, the Ellerth/Faragher framework is one under which supervisory status can usually be readily determined, generally by written documentation. The approach recommended by the EEOC Guidance, by contrast, would make the determination of supervisor status depend on a highly case-specific evaluation of numerous factors.
The Ellerth/Faragher framework represents what the Court saw as a workable compromise between the aided-in-the-accomplishment theory of vicarious liability and the legitimate interests of employers. The Seventh Circuit’s understanding of the concept of a “supervisor,” with which we agree, is easily workable; it can be applied without undue difficulty at both the summary judgment stage and at trial. The alternative, in many cases, would frustrate judges and confound jurors.A
Petitioner contends that her expansive understanding of the concept of a “supervisor” is supported by the meaning of the word in general usage and in other legal contexts, see Brief for Petitioner 25–28, but this argument is both incorrect on its own terms and, in any event, misguided.
In general usage, the term “supervisor” lacks a sufficiently specific meaning to be helpful for present purposes. Petitioner is certainly right that the term is often used to refer to a person who has the authority to direct another’s work. See, e.g., 17 Oxford English Dictionary 245 (2d ed. 1989) (defining the term as applying to “one who inspects and directs the work of others”). But the term is also often closely tied to the authority to take what Ellerth and Faragher referred to as a “tangible employment action.” See, e.g., Webster’s Third New International Dictionary 2296, def. 1(a) (1976) (“a person having authority delegated by an employer to hire, transfer, suspend, recall, promote, assign, or discharge another employee or to recommend such action”).
A comparison of the definitions provided by two colloquial business authorities illustrates the term’s imprecision in general usage. One says that “[s]upervisors are usually authorized to recommend and/or effect hiring, disciplining, promoting, punishing, rewarding, and other associated activities regarding the employees in their departments.” 5 Another says exactly the opposite: “A supervisor generally does not have the power to hire or fire employees or to promote them.” 6 Compare Ellerth, 524 U. S., at 762 (“Tangible employment actions fall within the special province of the supervisor”).
If we look beyond general usage to the meaning of the term in other legal contexts, we find much the same situation. Sometimes the term is reserved for those in the upper echelons of the management hierarchy. See, e.g., 25 U. S. C. §2021(18) (defining the “supervisor” of a school within the jurisdiction of the Bureau of Indian Affairs as
“the individual in the position of ultimate authority at a Bureau school”). But sometimes the term is used to refer to lower ranking individuals. See, e.g., 29 U. S. C. §152(11) (defining a supervisor to include “any individual having authority . . . to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment”); 42 U. S. C. §1396n(j)(4)(A) (providing that an eligible Medicaid beneficiary who receives care through an approved self-directed services plan may “hire, fire, supervise, and manage the individuals providing such services”).
Although the meaning of the concept of a supervisor varies from one legal context to another, the law often contemplates that the ability to supervise includes the ability to take tangible employment actions. 7 See, e.g., 5 CFR §§9701.511(a)(2), (3) (2012) (referring to a supervisor’s authority to “hire, assign, and direct employees . . . and [t]o lay off and retain employees, or to suspend, re
move, reduce in grade, band, or pay, or take other disciplinary action against such employees or, with respect to filling positions, to make selections for appointments from properly ranked and certified candidates for promotion or from any other appropriate source”); §9701.212(b)(4) (defining “supervisory work” as that which “may involve hiring or selecting employees, assigning work, managing performance, recognizing and rewarding employees, and other associated duties”).
In sum, the term “supervisor” has varying meanings both in colloquial usage and in the law. And for this reason, petitioner’s argument, taken on its own terms, is unsuccessful.
More important, petitioner is misguided in suggesting that we should approach the question presented here as if “supervisor” were a statutory term. “Supervisor” is not a term used by Congress in Title VII. Rather, the term was adopted by this Court in Ellerth and Faragher as a label for the class of employees whose misconduct may give rise to vicarious employer liability. Accordingly, the way to understand the meaning of the term “supervisor” for present purposes is to consider the interpretation that best fits within the highly structured framework that those cases adopted.B
In considering Ellerth and Faragher, we are met at the outset with petitioner’s contention that at least some of the alleged harassers in those cases, whom we treated as supervisors, lacked the authority that the Seventh Circuit’s definition demands. This argument misreads our decisions.
In Ellerth, it was clear that the alleged harasser was a supervisor under any definition of the term: He hired his victim, and he promoted her (subject only to the ministerial approval of his supervisor, who merely signed the paperwork). 524 U. S., at 747. Ellerth was a case from the Seventh Circuit, and at the time of its decision in that case, that court had already adopted its current definition of a supervisor. See Volk v. Coler, 845 F. 2d 1422, 1436 (1988). See also Parkins v. Civil Constructors of Ill., Inc., 163 F. 3d 1027, 1033, n. 1 (CA7 1998) (discussing Circuit case law). Although the en banc Seventh Circuit in Ellerth issued eight separate opinions, there was no disagreement about the harasser’s status as a supervisor. Jansen v. Packaging Corp. of America, 123 F. 3d 490 (1997) (per curiam). Likewise, when the case reached this Court, no question about the harasser’s status was raised.
The same is true with respect to Faragher. In that case, Faragher, a female lifeguard, sued her employer, the city of Boca Raton, for sexual harassment based on the conduct of two other lifeguards, Bill Terry and David Silverman, and we held that the city was vicariously liable for Terry’s and Silverman’s harassment. Although it is clear that Terry had authority to take tangible employment actions affecting the victim, 8 see 524 U. S., at 781 (explaining that Terry could hire new lifeguards, supervise their work assignments, counsel, and discipline them), Silverman
may have wielded less authority, ibid. (noting that Silverman was “responsible for making the lifeguards’ daily assignments, and for supervising their work and fitness training”). Nevertheless, the city never disputed Faragher’s characterization of both men as her “supervisors.” See App., O. T. 1997, No. 97–282, p. 40 (First Amended Complaint ¶¶6–7); id., at 79 (Answer to First Amended Complaint ¶¶6–7) (admitting that both harassers had “supervisory responsibilities” over the plaintiff). 9
In light of the parties’ undisputed characterization of the alleged harassers, this Court simply was not presented with the question of the degree of authority that an employee must have in order to be classified as a supervisor. 10 The parties did not focus on the issue in their briefs, although the victim in Faragher appears to have agreed that supervisors are employees empowered to take tangible employment actions. See Brief for Petitioner, O. T. 1997, No. 97–282, p. 24 (“Supervisors typically exercise broad discretionary powers over their subordinates, determining many of the terms and conditions of their employment, including their raises and prospects for promotion and controlling or greatly influencing whether they are to be dismissed”).
For these reasons, we have no difficulty rejecting petitioner’s argument that the question before us in the present case was effectively settled in her favor by our treatment of the alleged harassers in Ellerth and Faragher. 11
The dissent acknowledges that our prior cases do “not squarely resolve whether an employee without power to take tangible employment actions may nonetheless qualify as a supervisor,” but accuses us of ignoring the “all-too-plain reality” that employees with authority to control their subordinates’ daily work are aided by that authority in perpetuating a discriminatory work environment. Post, at 8 (opinion of Ginsburg, J.). As Ellerth recognized, however, “most workplace tortfeasors are aided in accomplishing their tortious objective by the existence of the agency relation,” and consequently “something more” is required in order to warrant vicarious liability. 524 U. S., at 760. The ability to direct another employee’s tasks is simply not sufficient. Employees with such powers are certainly capable of creating intolerable work environments, see post, at 9–11 (discussing examples), but so are many other co-workers. Negligence provides the better framework for evaluating an employer’s liability when a harassing employee lacks the power to take tangible employment actions.C
Although our holdings in Faragher and Ellerth do not resolve the question now before us, we believe that the answer to that question is implicit in the characteristics of the framework that we adopted.
To begin, there is no hint in either Ellerth or Faragher that the Court contemplated anything other than a unitary category of supervisors, namely, those possessing the authority to effect a tangible change in a victim’s terms or conditions of employment. The Ellerth/Faragher framework draws a sharp line between co-workers and supervisors. Co-workers, the Court noted, “can inflict psychological injuries” by creating a hostile work environment, but they “cannot dock another’s pay, nor can one co-worker demote another.” Ellerth, 524 U. S., at 762. Only a supervisor has the power to cause “direct economic harm” by taking a tangible employment action. Ibid. “Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control. . . . Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates.” Ibid. (emphasis added). The strong implication of this passage is that the authority to take tangible employment actions is the defining characteristic of a supervisor, not simply a characteristic of a subset of an ill-defined class of employees who qualify as supervisors.
The way in which we framed the question presented in Ellerth supports this understanding. As noted, the Ellerth/Faragher framework sets out two circumstances in which an employer may be vicariously liable for a supervisor’s harassment. The first situation (which results in strict liability) exists when a supervisor actually takes a tangible employment action based on, for example, a subordinate’s refusal to accede to sexual demands. The second situation (which results in vicarious liability if the employer cannot make out the requisite affirmative defense) is present when no such tangible action is taken. Both Ellerth and Faragher fell into the second category, and in Ellerth, the Court couched the question at issue in the following terms: “whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate’s terms or conditions of employment, based on sex, but does not fulfill the threat.” 524 U. S., at 754. This statement plainly ties the second situation to a supervisor’s authority to inflict direct economic injury. It is because a supervisor has that authority—and its potential use hangs as a threat over the victim—that vicarious liability (subject to the affirmative defense) is justified.
Finally, the Ellerth/Faragher Court sought a framework that would be workable and would appropriately take into account the legitimate interests of employers and employees. The Court looked to principles of agency law for guidance, but the Court concluded that the “malleable terminology” of the aided-in-the-commission principle counseled against the wholesale incorporation of that principle into Title VII case law. Ellerth, 524 U. S., at 763. Instead, the Court also considered the objectives of Title VII, including “the limitation of employer liability in certain circumstances.” Id., at 764.
The interpretation of the concept of a supervisor that we adopt today is one that can be readily applied. In a great many cases, it will be known even before litigation is commenced whether an alleged harasser was a supervisor, and in others, the alleged harasser’s status will become clear to both sides after discovery. And once this is known, the parties will be in a position to assess the strength of a case and to explore the possibility of resolving the dispute. Where this does not occur, supervisor status will generally be capable of resolution at summary judgment. By contrast, under the approach advocated by petitioner and the EEOC, supervisor status would very often be murky—as this case well illustrates. 12
According to petitioner, the record shows that Davis, her alleged harasser, wielded enough authority to qualify as a supervisor. Petitioner points in particular to Davis’ job description, which gave her leadership responsibilities, and to evidence that Davis at times led or directed Vance and other employees in the kitchen. See Brief for Petitioner 42–43 (citing record); Reply Brief 22–23 (same). The United States, on the other hand, while applying the same open-ended test for supervisory status, reaches the opposite conclusion. At least on the present record, the United States tells us, Davis fails to qualify as a supervisor. Her job description, in the Government’s view, is not dispositive, and the Government adds that it would not be enough for petitioner to show that Davis “occasionally took the lead in the kitchen.” Brief for United States as Amicus Curiae 31 (U. S. Brief).
This disagreement is hardly surprising since the EEOC’s definition of a supervisor, which both petitioner and the United States defend, is a study in ambiguity. In its Enforcement Guidance, the EEOC takes the position that an employee, in order to be classified as a supervisor, must wield authority “ ‘of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment.’ ” Id., at 27 (quoting App. to Pet. for Cert. 89a (EEOC Guidance)). But any authority over the work of another employee provides at least some assistance, see Ellerth, supra, at 763, and that is not what the United States interprets the Guidance to mean. Rather, it informs us, the authority must exceed both an ill-defined temporal requirement (it must be more than “occasiona[l]”) and an ill-defined substantive requirement (“an employee who directs ‘only a limited number of tasks or assignments’ for another employee . . . would not have sufficient authority to qualify as a supervisor.” U. S. Brief 28 (quoting App. to Pet. for Cert. 92a (EEOC Guidance));
U. S. Brief 31.
We read the EEOC Guidance as saying that the number (and perhaps the importance) of the tasks in question is a factor to be considered in determining whether an employee qualifies as a supervisor. And if this is a correct interpretation of the EEOC’s position, what we are left with is a proposed standard of remarkable ambiguity.
The vagueness of this standard was highlighted at oral argument when the attorney representing the United States was asked to apply that standard to the situation in Faragher, where the alleged harasser supposedly threatened to assign the plaintiff to clean the toilets in the lifeguard station for a year if she did not date him. 524 U. S., at 780. Since cleaning the toilets is just one task, albeit an unpleasant one, the authority to assign that job would not seem to meet the more-than-a-limited-number-of-tasks requirement in the EEOC Guidance. Nevertheless, the Government attorney’s first response was that the authority to make this assignment would be enough. Tr. of Oral Arg. 23. He later qualified that answer by saying that it would be necessary to “know how much of the day’s work [was] encompassed by cleaning the toilets.” Id., at 23–24. He did not explain what percentage of the day’s work (50%, 25%, 10%?) would suffice.
The Government attorney’s inability to provide a definitive answer to this question was the inevitable consequence of the vague standard that the Government asks us to adopt. Key components of that standard—“sufficient” authority, authority to assign more than a “limited number of tasks,” and authority that is exercised more than “occasionally”—have no clear meaning. Applying these standards would present daunting problems for the lower federal courts and for juries.
Under the definition of “supervisor” that we adopt today, the question of supervisor status, when contested, can very often be resolved as a matter of law before trial. The elimination of this issue from the trial will focus the efforts of the parties, who will be able to present their cases in a way that conforms to the framework that the jury will apply. The plaintiff will know whether he or she must prove that the employer was negligent or whether the employer will have the burden of proving the elements of the Ellerth/Faragher affirmative defense. Perhaps even more important, the work of the jury, which is inevitably complicated in employment discrimination cases, will be simplified. The jurors can be given preliminary instructions that allow them to understand, as the evidence comes in, how each item of proof fits into the framework that they will ultimately be required to apply. And even where the issue of supervisor status cannot be eliminated from the trial (because there are genuine factual disputes about an alleged harasser’s authority to take tangible employment actions), this preliminary question is relatively straightforward.
The alternative approach advocated by petitioner and the United States would make matters far more complicated and difficult. The complexity of the standard they favor would impede the resolution of the issue before trial. With the issue still open when trial commences, the parties would be compelled to present evidence and argument on supervisor status, the affirmative defense, and the question of negligence, and the jury would have to grapple with all those issues as well. In addition, it would often be necessary for the jury to be instructed about two very different paths of analysis, i.e., what to do if the alleged harasser was found to be a supervisor and what to do if the alleged harasser was found to be merely a co-worker.
Courts and commentators alike have opined on the need for reasonably clear jury instructions in employment discrimination cases. 13 And the danger of juror confusion is particularly high where the jury is faced with instructions on alternative theories of liability under which different parties bear the burden of proof. 14 By simplifying the process of determining who is a supervisor (and by extension, which liability rules apply to a given set of facts), the approach that we take will help to ensure that juries return verdicts that reflect the application of the correct legal rules to the facts.
Contrary to the dissent’s suggestions, see post, at 14, 17, this approach will not leave employees unprotected against harassment by co-workers who possess the authority to inflict psychological injury by assigning unpleasant tasks or by altering the work environment in objectionable ways. In such cases, the victims will be able to prevail simply by showing that the employer was negligent in permitting this harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent. The nature and degree of authority possessed by harassing employees varies greatly, see post, 9–11 (offering examples), and as we explained above, the test proposed by petitioner and the United States is ill equipped to deal with the variety of situations that will inevitably arise. This variety presents no problem for the negligence standard, which is thought to provide adequate protection for tort plaintiffs in many other situations. There is no reason why this standard, if accompanied by proper instructions, cannot provide the same service in the context at issue here.D
The dissent argues that the definition of a supervisor that we now adopt is out of touch with the realities of the workplace, where individuals with the power to assign daily tasks are often regarded by other employees as supervisors. See post, at 5, 8–12. But in reality it is the alternative that is out of touch. Particularly in modern organizations that have abandoned a highly hierarchical management structure, it is common for employees to have overlapping authority with respect to the assignment of work tasks. Members of a team may each have the responsibility for taking the lead with respect to a particular aspect of the work and thus may have the responsibility to direct each other in that area of responsibility.
Finally, petitioner argues that tying supervisor status to the authority to take tangible employment actions will encourage employers to attempt to insulate themselves from liability for workplace harassment by empowering only a handful of individuals to take tangible employment actions. But a broad definition of “supervisor” is not necessary to guard against this concern.
As an initial matter, an employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment. And even if an employer concentrates all decisionmaking authority in a few individuals, it likely will not isolate itself from heightened liability under Faragher and Ellerth. If an employer does attempt to confine decisionmaking power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee. Cf. Rhodes v. Illinois Dept. of Transp., 359 F. 3d 498, 509 (CA7 2004) (Rovner, J., concurring in part and concurring in judgment) (“Although they did not have the power to take formal employment actions vis-à-vis [the victim], [the harassers] necessarily must have had substantial input into those decisions, as they would have been the people most familiar with her work—certainly more familiar with it than the off-site Department Administrative Services Manager”). Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies. See Ellerth, 524 U. S., at 762.IV
Importuning Congress, post, at 21–22, the dissent suggests that the standard we adopt today would cause the plaintiffs to lose in a handful of cases involving shocking allegations of harassment, see post, at 9–12. However, the dissent does not mention why the plaintiffs would lose in those cases. It is not clear in any of those examples that the legal outcome hinges on the definition of “supervisor.” For example, Clara Whitten ultimately did not prevail on her discrimination claims—notwithstanding the fact that the Fourth Circuit adopted the approach advocated by the dissent, see Whitten v. Fred’s, Inc., 601 F. 3d 231, 243–247 (2010)—because the District Court subsequently dismissed her claims for lack of jurisdiction. See Whitten v. Fred’s, Inc., No. 8:08–0218–HMH–BHH, 2010 WL 2757005, *3 (D SC, July 12, 2010). And although the dissent suggests that Donna Rhodes’ employer would have been liable under the dissent’s definition of “supervisor,” that is pure speculation: It is not clear that Rhodes suffered any tangible employment action, see Rhodes v. Illinois Dept. of Transp., 243 F. Supp. 2d 810, 817 (ND Ill. 2003), and no court had occasion to determine whether the employer could have established the affirmative defense (a prospect that is certainly feasible given that there was evidence that the employer had an “adequate anti-harassment policy in place,” that the employer promptly addressed the incidents about which Rhodes complained, and that “Rhodes failed to take advantage of the preventative or corrective opportunities provided,” Rhodes v. Illinois Dept. of Transp., 359 F. 3d, at 507). 15 Finally, the dissent’s reliance on Monika Starke’s case is perplexing given that the EEOC ultimately did obtain relief (in the amount of $50,000) for the harassment of Starke, 16 see Order of Dismissal in No. 1:07–cv–0095–LRR (ND Iowa, Feb. 2, 2013), Dkt. No. 380, Exh. 1, ¶1, notwithstanding the fact that the court in that case applied the definition of “supervisor” that we adopt today, see EEOC v. CRST Van Expedited, Inc., 679 F. 3d 657, 684 (CA8 2012).
In any event, the dissent is wrong in claiming that our holding would preclude employer liability in other cases with facts similar to these. Assuming that a harasser is not a supervisor, a plaintiff could still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant. Thus, it is not true, as the dissent asserts, that our holding “relieves scores of employers of responsibility” for the behavior of workers they employ. Post, at 14.
The standard we adopt is not untested. It has been the law for quite some time in the First, Seventh, and Eighth Circuits, see, e.g., Noviello v. Boston, 398 F. 3d 76, 96 (CA1 2005); Weyers v. Lear Operations Corp., 359 F. 3d 1049, 1057 (CA8 2004); Parkins v. Civil Constructors of Ill., Inc., 163 F. 3d 1027, 1033–1034, and n. 1 (CA7 1998)—i.e., in Arkansas, Illinois, Indiana, Iowa, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, North Dakota, Rhode Island, South Dakota, and Wisconsin. We are aware of no evidence that this rule has produced dire consequences in these 14 jurisdictions.
Despite its rhetoric, the dissent acknowledges that Davis, the alleged harasser in this case, would probably not qualify as a supervisor even under the dissent’s preferred approach. See post, at 20 (“[T]here is cause to anticipate that Davis would not qualify as Vance’s supervisor”). On that point, we agree. Petitioner did refer to Davis as a “supervisor” in some of the complaints that she filed, App. 28; id., at 45, and Davis’ job description does state that she supervises Kitchen Assistants and Substitutes and “[l]ead[s] and direct[s]” certain other employees, id., at 12–13. But under the dissent’s preferred approach, supervisor status hinges not on formal job titles or “paper descriptions” but on “specific facts about the working relationship.” Post, at 20–21 (internal quotation marks omitted).
Turning to the “specific facts” of petitioner’s and Davis’ working relationship, there is simply no evidence that Davis directed petitioner’s day-to-day activities. The record indicates that Bill Kimes (the general manager of the Catering Division) and the chef assigned petitioner’s daily tasks, which were given to her on “prep lists.” No. 1:06–cv–1452–SEB–JMS, 2008 WL 4247836, *7 (SD Ind., Sept. 10, 2008); App. 430, 431. The fact that Davis sometimes may have handed prep lists to petitioner, see id., at 74, is insufficient to confer supervisor status, see App. to Pet. for Cert. 92a (EEOC Guidance). And Kimes—not Davis—set petitioner’s work schedule. See App. 431. See also id., at 212.
Because the dissent concedes that our approach in this case deprives petitioner of none of the protections that Title VII offers, the dissent’s critique is based on nothing more than a hypothesis as to how our approach might affect the outcomes of other cases—cases where an employee who cannot take tangible employment actions, but who does direct the victim’s daily work activities in a meaningful way, creates an unlawful hostile environment, and yet does not wield authority of such a degree and nature that the employer can be deemed negligent with respect to the harassment. We are skeptical that there are a great number of such cases. However, we are confident that, in every case, the approach we take today will be more easily administrable than the approach advocated by the dissent.* * *
We hold that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim. Because there is no evidence that BSU empowered Davis to take any tangible employment actions against Vance, the judgment of the Seventh Circuit is affirmed.
It is so ordered.
1 See, e.g., Williams v. Waste Management of Ill., 361 F. 3d 1021, 1029 (CA7 2004); McGinest v. GTE Serv. Corp., 360 F. 3d 1103, 1119 (CA9 2004); Joens v. John Morrell & Co., 354 F. 3d 938, 940 (CA8 2004); Noviello v. Boston, 398 F. 3d 76, 95 (CA1 2005); Duch v. Jakubek, 588 F. 3d 757, 762 (CA2 2009); Huston v. Procter & Gamble Paper Prods. Corp., 568 F. 3d 100, 104–105 (CA3 2009).
2 The Restatement (Third) of Agency disposed of this exception to liability, explaining that “[t]he purposes likely intended to be met by the ‘aided in accomplishing’ basis are satisfied by a more fully elaborated treatment of apparent authority and by the duty of reasonable care that a principal owes to third parties with whom it interacts through employees and other agents.” 2 Restatement (Third) §7.08, p. 228 (2005). The parties do not argue that this change undermines our holdings in Faragher and Ellerth.
3 Faragher and Ellerth involved hostile environment claims premised on sexual harassment. Several federal courts of appeals have held that Faragher and Ellerth apply to other types of hostile environment claims, including race-based claims. See Spriggs v. Diamond Auto Glass, 242 F. 3d 179, 186, n. 9 (CA4 2001) (citing cases reflecting “the developing consensus . . . that the holdings [in Faragher and Ellerth] apply with equal force to other types of harassment claims under Title VII”). But see Ellerth, 524 U. S., at 767 (Thomas, J., dissenting) (stating that, as a result of the Court’s decision in Ellerth, “employer liability under Title VII is judged by different standards depending upon whether a sexually or racially hostile work environment is alleged”). Neither party in this case challenges the application of Faragher and Ellerth to race-based hostile environment claims, and we assume that the framework announced in Faragher and Ellerth applies to cases such as this one.
4 The United States urges us to defer to the EEOC Guidance. Brief for United States as Amicus Curiae 26–29 (citing Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944) ). But to do so would be proper only if the EEOC Guidance has the power to persuade, which “depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.” Id., at 140. For the reasons explained below, we do not find the EEOC Guidance persuasive.
5 http://www.businessdictionary.com/definition/supervisor.html (all In-ternet materials as visited June 21, 2013, and available in Clerk of Court’s case file).
7 One outlier that petitioner points to is the National Labor Relations Act (NLRA), 29 U. S. C. §152(11). Petitioner argues that the NLRA’s definition supports her position in this case to the extent that it encompasses employees who have the ability to direct or assign work to subordinates. Brief for Petitioner 27–28. The NLRA certainly appears to define “supervisor” in broad terms. The National Labor Relations Board (NLRB) and the lower courts, however, have consistently explained that supervisory authority is not trivial or insignificant: If the term “supervisor” is construed too broadly, then employees who are deemed to be supervisors will be denied rights that the NLRA was intended to protect. E.g., In re Connecticut Humane Society, 358 NLRB No. 31, *33 (Apr. 12, 2012); Frenchtown Acquisition Co., Inc. v. NLRB, 683 F. 3d 298, 305 (CA6 2012); Beverly Enterprises-Massachusetts, Inc. v. NLRB, 165 F. 3d 960, 963 (CADC 1999). Indeed, in defining a supervisor for purposes of the NLRA, Congress sought to distinguish “between straw bosses, leadmen, set-up men, and other minor supervisory employees, on the one hand, and the supervisor vested with such genuine management prerogatives as theright to hire or fire, discipline, or make effective recommendations with respect to such action.” S. Rep. No. 105, 80th Cong., 1st Sess., 4 (1947). Cf. NLRB v. Health Care & Retirement Corp. of America, 511 U. S. 571, 586 (1994) (HCRA) (Ginsburg, J., dissenting) (“Through case-by-case adjudication, the Board has sought to distinguish individuals exercising the level of control that truly places them in the ranks of management, from highly skilled employees, whether professional or technical, who perform, incidentally to their skilled work, a limited supervisory role”). Accordingly, the NLRB has interpreted the NLRA’s statutory definition of supervisor more narrowly than its plain language might permit. See, e.g., Connecticut Humane Society, supra, at *39 (an employee who evaluates others is not a supervisor unless the evaluation “affect[s] the wages and the job status of the employee evaluated”); In re CGLM, Inc., 350 NLRB 974, 977 (2007) (“ ‘If any authority over someone else, no matter how insignificant or infrequent, made an employee a super-visor, our industrial composite would be predominantly supervisory. Every order-giver is not a supervisor. Even the traffic director tells the president of the company where to park his car’ ” (quoting NLRB v. Security Guard Serv., Inc., 384 F. 2d 143, 151 (CA5 1967))). The NLRA therefore does not define the term “supervisor” as broadly as petitioner suggests. To be sure, the NLRA may in some instances define “supervisor” more broadly than we define the term in this case. But those differences reflect the NLRA’s unique purpose, which is to preserve the balance of power between labor and management, see HCRA, supra, at 573 (explaining that Congress amended the NLRA to exclude supervisors in order to address the “imbalance between labor and management” that resulted when “supervisory employees could organize as part of bargaining units and negotiate with the employer”). That purpose is inapposite in the context of Title VII, which focuses on eradicating discrimination. An employee may have a sufficient degree of authority over subordinates such that Congress has decided that the employee should not participate with lower level employees in the same collective-bargaining unit (because, for example, a higher level employee will pursue his own interests at the expense of lower level employees’ interests), but that authority is not necessarily sufficient to merit heightened liability for the purposes of Title VII. The NLRA’s definition of supervisor therefore is not controlling in this context.
8 The dissent suggests that it is unclear whether Terry would qualify as a supervisor under the test we adopt because his hiring decisions were subject to approval by higher management. Post, at 7, n. 1 (opinion of Ginsburg, J.). See also Faragher, 524 U. S., at 781. But we have assumed that tangible employment actions can be subject to such approval. See Ellerth, 524 U. S., at 762. In any event, the record indicates that Terry possessed the power to make employment decisions having direct economic consequences for his victims. See Brief for Petitioner in Faragher v. Boca Raton, O. T. 1997, No. 97–282, p. 9 (“No one, during the twenty years that Terry was Marine Safety Chief, was hired without his recommendation. [He] initiated firing and suspending personnel. [His] evaluations of the lifeguards translated into sal-ary increases. [He] made recommendations regarding promotions . . .” (citing record)).
9 Moreover, it is by no means certain that Silverman lacked the authority to take tangible employment actions against Faragher. In her merits brief, Faragher stated that, as a lieutenant, Silverman “made supervisory and disciplinary decisions and had input on the evaluations as well.” Id., at 9–10. If that discipline had economic consequences (such as suspension without pay), then Silverman might qualify as a supervisor under the definition we adopt today. Silverman’s ability to assign Faragher significantly different work responsibilities also may have constituted a tangible employment action. Silverman told Faragher, “ ‘Date me or clean the toilets for a year.’ ” Faragher, supra, at 780. That threatened reassignment of duties likely would have constituted significantly different responsibilities for a lifeguard, whose job typically is to guard the beach. If that reassignment had economic consequences, such as foreclosing Far-agher’s eligibility for promotion, then it might constitute a tangible employment action.
10 The lower court did not even address this issue. See Faragher v. Boca Raton, 111 F. 3d 1530, 1547 (CA11 1997) (Anderson, J., concurring in part and dissenting in part) (noting that it was unnecessary to “decide the threshold level of authority which a supervisor must possess in order to impose liability on the employer”).
11 According to the dissent, the rule that we adopt is also inconsistent with our decision in Pennsylvania State Police v. Suders, 542 U. S. 129 (2004) . See post, at 7–8. The question in that case was “whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action and therefore precludes assertion of the affirmative defense articulated in Ellerth and Faragher.” Suders, supra, at 140. As the dissent implicitly acknowledges, the supervi-sor status of the harassing employees was not before us in that case. See post, at 8. Indeed, the employer conceded early in the litigation that the relevant employees were supervisors, App. in Pennsylvania State Police v. Suders, O. T. 2003, No. 03–95, p. 20 (Answer ¶29),and we therefore had no occasion to question that unchallengedcharacterization.
12 The dissent attempts to find ambiguities in our holding, see post,at 15–16, and n. 5, but it is indisputable that our holding is orders of magnitude clearer than the nebulous standard it would adopt. Employment discrimination cases present an almost unlimited numberof factual variations, and marginal cases are inevitable under any standard.
13 See, e.g., Gross v. FBL Financial Services, Inc., 557 U. S. 167, 179 (2009) ; Armstrong v. Burdette Tomlin Memorial Hospital, 438 F. 3d 240, 249 (CA3 2006) (noting in the context of McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973) , that that “the ‘prima facie case and the shifting burdens confuse lawyers and judges, much less juries, who do not have the benefit of extensive study of the law on the subject’ ” (quoting Mogull v. Commercial Real Estate, 162 N. J. 449, 471, 744 A. 2d 1186, 1199 (2000))); Whittington v. Nordam Group Inc., 429 F. 3d 986, 998 (CA10 2005) (noting that unnecessarily complicated instructions complicate a jury’s job in employment discrimination cases, and “unnecessary complexity increases the opportunity for error”); Sanders v. New York City Human Resources Admin., 361 F. 3d 749, 758 (CA2 2004) (“Making the burden-shifting scheme of McDonnell Douglas part of a jury charge undoubtedly constitutes error because of the manifest risk of confusion it creates”); Mogull, supra, at 473, 744 A. 2d, at 1200 (“Given the confusion that often results when the first and second stages of the McDonnell Douglas test goes to the jury, we recommend that the court should decide both those issues”); Tymkovich, The Problem with Pretext, 85 Denver Univ. L. Rev. 503, 527–529 (2008) (discussing the potential for jury confusion that arises when in-structions are unduly complex and proposing a simpler framework); Grebeldinger, Instructing the Jury in a Case of Circumstantial Individual Disparate Treatment: Thoroughness or Simplicity? 12 Lab. Law. 399, 419 (1997) (concluding that more straightforward instructions “provid[e] the jury with clearer guidance of their mission”); Davis, The Stumbling Three-Step, Burden-Shifting Approach in Employment Discrimination Cases, 61 Brook. L. Rev. 703, 742–743 (1995) (discussing potential for juror confusion in the face of complex instructions); Note, Toward a Motivating Factor Test for Individual Disparate Treatment Claims, 100 Mich. L. Rev. 234, 262–273 (2001) (discussing the need for a simpler approach to jury instructions in employment discrimination cases).
14 Cf. Struve, Shifting Burdens: Discrimination Law Through the Lens of Jury Instructions, 51 Boston College L. Rev. 279, 330–334 (2010) (arguing that unnecessary confusion arises when a jury must resolve different claims under different burden frameworks); Monahan, Cabrera v. Jakabovitz—A Common-Sense Proposal for Formulating Jury Instructions Regarding Shifting Burdens of Proof in Disparate Treatment Discrimination Cases, 5 Geo. Mason U. C. R. L. J. 55, 76 (1994) (“Any jury instruction that attempts to shift the burden of per-suasion on closely related issues is never likely to be successful”).
15 Similarly, it is unclear whether Yasharay Mack ultimately would have prevailed even under the dissent’s definition of “supervisor.” The Second Circuit (adopting a definition similar to that advocated by the dissent) remanded the case for the District Court to determine whether Mack “ ‘unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.’ ” Mack v. Otis Elevator Co., 326 F. 3d 116, 127–128 (2003) (quoting Ellerth, 524 U. S., at 765). But before it had an opportunity to make any such determination, Mack withdrew her complaint and the District Court dismissed her claims with prejudice. See Stipulation and Order of Dismissal in No. 1:00–cv–7778–LAP (SDNY, Oct. 21, 2004), Dkt. No. 63.
16 Starke herself lacked standing to pursue her claims, see EEOC v. CRST Van Expedited, Inc., 679 F. 3d 657, 678, and n. 14 (CA8 2012), but the Eighth Circuit held that the EEOC could sue in its own name to remedy the sexual harassment against Starke and other CRST employees, see id., at 682.
SUPREME COURT OF THE UNITED STATES
MAETTA VANCE, PETITIONER v. BALL STATE UNIVERSITY
on writ of certiorari to the united states court of appeals for the seventh circuit
[June 24, 2013]
Justice Ginsburg, with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting.
In Faragher v. Boca Raton, 524 U. S. 775 (1998) , and Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998) , this Court held that an employer can be vicariously liable under Title VII of the Civil Rights Act of 1964 for harassment by an employee given supervisory authority over subordinates. In line with those decisions, in 1999, the Equal Employment Opportunity Commission (EEOC) provided enforcement guidance “regarding employer liability for harassment by supervisors based on sex, race, color, religion, national origin, age, disability, or protected activity.” EEOC, Guidance on Vicarious Employer Liability For Unlawful Harassment by Supervisors, 8 BNA FEP Manual 405:7651 (Feb. 2003) (hereinafter EEOC Guidance). Addressing who qualifies as a supervisor, the EEOC answered: (1) an individual authorized “to undertake or recommend tangible employment decisions affecting the employee,” including “hiring, firing, promoting, demoting, and reassigning the employee”; or (2) an individual authorized “to direct the employee’s daily work activities.” Id., at 405:7654.
The Court today strikes from the supervisory category employees who control the day-to-day schedules and assignments of others, confining the category to those formally empowered to take tangible employment actions. The limitation the Court decrees diminishes the force of Faragher and Ellerth, ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation’s workplaces. I would follow the EEOC’s Guidance and hold that the authority to direct an employee’s daily activities establishes supervisory status under Title VII.I A
Title VII makes it “an unlawful employment practice for an employer” to “discriminate against any individual with respect to” the “terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a). The creation of a hostile work environment through harassment, this Court has long recognized, is a form of proscribed discrimination. Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 78 (1998) ; Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 –65 (1986).
What qualifies as harassment? Title VII imposes no “general civility code.” Oncale, 523 U. S., at 81. It does not reach “the ordinary tribulations of the workplace,” for example, “sporadic use of abusive language” or generally boorish conduct. B. Lindemann & D. Kadue, Sexual Harassment in Employment Law 175 (1992). See also 1 B. Lindemann & P. Grossman, Employment Discrimination Law 1335–1343 (4th ed. 2007) (hereinafter Lindemann & Grossman). To be actionable, charged behavior need not drive the victim from her job, but it must be of such sever-ity or pervasiveness as to pollute the working environment, thereby “alter[ing] the conditions of the victim’s employment.” Harris v. Forklift Systems, Inc., 510 U. S. 17 –22 (1993).
In Faragher and Ellerth, this Court established a framework for determining when an employer may be held liable for its employees’ creation of a hostile work environment. Recognizing that Title VII’s definition of “employer” includes an employer’s “agent[s],” 42 U. S. C. §2000e(b), the Court looked to agency law for guidance in formulating liability standards. Faragher, 524 U. S., at 791, 801; Ellerth, 524 U. S., at 755–760. In particular, the Court drew upon §219(2)(d) of the Restatement (Second) of Agency (1957), which makes an employer liable for the conduct of an employee, even when that employee acts beyond the scope of her employment, if the employee is “aided in accomplishing” a tort “by the existence of the agency relation.” See Faragher, 524 U. S., at 801; Ellerth, 524 U. S., at 758.
Stemming from that guide, Faragher and Ellerth distinguished between harassment perpetrated by supervisors, which is often enabled by the supervisor’s agency relationship with the employer, and harassment perpetrated by co-workers, which is not similarly facilitated. Faragher, 524 U. S., at 801–803; Ellerth, 524 U. S., at 763–765. If the harassing employee is a supervisor, the Court held, the employer is vicariously liable whenever the harassment culminates in a tangible employment action. Faragher, 524 U. S., at 807–808; Ellerth, 524 U. S., at 764–765. The term “tangible employment action,” Ellerth observed, “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id., at 761. Such an action, the Court explained, provides “assurance the injury could not have been inflicted absent the agency relation.” Id., at 761–762.
An employer may also be held vicariously liable for a supervisor’s harassment that does not culminate in a tangible employment action, the Court next determined. In such a case, however, the employer may avoid liability by showing that (1) it exercised reasonable care to pre-vent and promptly correct harassing behavior, and (2) the complainant unreasonably failed to take advantage of preventative or corrective measures made available to her. Faragher, 524 U. S., at 807; Ellerth, 524 U. S., at 765. The employer bears the burden of establishing this affirmative defense by a preponderance of the evidence. Faragher, 524 U. S., at 807; Ellerth, 524 U. S., at 765.
In contrast, if the harassing employee is a co-worker, a negligence standard applies. To satisfy that standard, the complainant must show that the employer knew or should have known of the offensive conduct but failed to take appropriate corrective action. See Faragher, 524 U. S., at 799; Ellerth, 524 U. S., at 758–759. See also 29 CFR §1604.11(d) (2012); EEOC Guidance 405:7652.B
The distinction Faragher and Ellerth drew between supervisors and co-workers corresponds to the realities of the workplace. Exposed to a fellow employee’s harassment, one can walk away or tell the offender to “buzz off.” A supervisor’s slings and arrows, however, are not so easily avoided. An employee who confronts her harassing supervisor risks, for example, receiving an undesirable or unsafe work assignment or an unwanted transfer. She may be saddled with an excessive workload or with placement on a shift spanning hours disruptive of her family life. And she may be demoted or fired. Facing such dangers, she may be reluctant to blow the whistle on her superior, whose “power and authority invests his or her harassing conduct with a particular threatening character.” Ellerth, 524 U. S., at 763. See also Faragher, 524 U. S., at 803; Brief for Respondent 23 (“The potential threat to one’s livelihood or working conditions will make the victim think twice before resisting harassment or fighting back.”). In short, as Faragher and Ellerth recognized, harassment by supervisors is more likely to cause palpable harm and to persist unabated than similar conduct by fellow employees.II
While Faragher and Ellerth differentiated harassment by supervisors from harassment by co-workers, neither decision gave a definitive answer to the question: Who qualifies as a supervisor? Two views have emerged. One view, in line with the EEOC’s Guidance, counts as a supervisor anyone with authority to take tangible employ-ment actions or to direct an employee’s daily work activities. E.g., Mack v. Otis Elevator Co., 326 F. 3d 116, 127 (CA2 2003); Whitten v. Fred’s, Inc., 601 F. 3d 231, 246 (CA4 2010); EEOC Guidance 405:7654. The other view ranks as supervisors only those authorized to take tangible employment actions. E.g., Noviello v. Boston, 398 F. 3d 76, 96 (CA1 2005); Parkins v. Civil Constructors of Ill., Inc., 163 F. 3d 1027, 1034 (CA7 1998); Joens v. John Morrell & Co., 354 F. 3d 938, 940–941 (CA8 2004).
Notably, respondent Ball State University agreed with petitioner Vance and the United States, as amicus curiae, that the tangible-employment-action-only test “does not necessarily capture all employees who may qualify as supervisors.” Brief for Respondent 1. “[V]icarious liability,” Ball State acknowledged, “also may be triggered when the harassing employee has the authority to control the victim’s daily work activities in a way that materially enables the harassment.” Id., at 1–2.
The different view taken by the Court today is out of accord with the agency principles that, Faragher and Ellerth affirmed, govern Title VII. See supra, at 3–4. It is blind to the realities of the workplace, and it discounts the guidance of the EEOC, the agency Congress established to interpret, and superintend the enforcement of, Title VII. Under that guidance, the appropriate question is: Has the employer given the alleged harasser authority to take tangible employment actions or to control the conditions under which subordinates do their daily work? If the answer to either inquiry is yes, vicarious liability is in order, for the superior-subordinate working arrangement facilitating the harassment is of the employer’s making.A
Until today, our decisions have assumed that employees who direct subordinates’ daily work are supervisors. In Faragher, the city of Boca Raton, Florida, employed Bill Terry and David Silverman to oversee the city’s corps of ocean lifeguards. 524 U. S., at 780. Terry and Silverman “repeatedly subject[ed] Faragher and other female lifeguards to uninvited and offensive touching,” and they regularly “ma[de] lewd remarks, and [spoke] of women in offensive terms.” Ibid. (internal quotation marks omitted). Terry told a job applicant that “female lifeguards had sex with their male counterparts,” and then “asked whether she would do the same.” Id., at 782. Silverman threatened to assign Faragher to toilet-cleaning duties for a year if she refused to date him. Id., at 780. In words and conduct, Silverman and Terry made the beach a hostile place for women to work.
As Chief of Boca Raton’s Marine Safety Division, Terry had authority to “hire new lifeguards (subject to the approval of higher management), to supervise all aspects of the lifeguards’ work assignments, to engage in counseling, to deliver oral reprimands, and to make a record of any such discipline.” Id., at 781. Silverman’s duties as a Marine Safety lieutenant included “making the lifeguards’ daily assignments, and . . . supervising their work and fitness training.” Ibid. Both men “were granted virtually unchecked authority over their subordinates, directly controlling and supervising all aspects of Faragher’s day-to-day activities.” Id., at 808 (internal quotation marks and brackets omitted).
We may assume that Terry would fall within the definition of supervisor the Court adopts today. See ante, at 9. 1 But nothing in the Faragher record shows that Silverman would. Silverman had oversight and assignment responsibilities—he could punish lifeguards who would not date him with full-time toilet-cleaning duty—but there was no evidence that he had authority to take tangible employment actions. See Faragher, 524 U. S., at 780–781. Holding that Boca Raton was vicariously liable for Silverman’s harassment, id., at 808–809, the Court characterized him as Faragher’s supervisor, see id., at 780, and there was no dissent on that point, see id., at 810 (Thomas, J., dissenting).
Subsequent decisions reinforced Faragher’s use of the term “supervisor” to encompass employees with authority to direct the daily work of their victims. In Pennsylvania State Police v. Suders, 542 U. S. 129, 140 (2004) , for example, the Court considered whether a constructive discharge occasioned by supervisor harassment ranks as a tangible employment action. The harassing employees lacked authority to discharge or demote the complainant, but they were “responsible for the day-to-day supervision” of the workplace and for overseeing employee shifts. Suders v. Easton, 325 F. 3d 432, 450, n. 11 (CA3 2003). Describing the harassing employees as the complainant’s “supervisors,” the Court proceeded to evaluate the complainant’s constructive discharge claim under the Ellerth and Faragher framework. Suders, 542 U. S., at 134, 140–141.
It is true, as the Court says, ante, at 15–17, and n. 11, that Faragher and later cases did not squarely resolve whether an employee without power to take tangible em-ployment actions may nonetheless qualify as a supervisor. But in laboring to establish that Silverman’s supervisor status, undisputed in Faragher, is not dispositive here, the Court misses the forest for the trees. Faragher illustrates an all-too-plain reality: A supervisor with authority to control subordinates’ daily work is no less aided in his harassment than is a supervisor with authority to fire, demote, or transfer. That Silverman could threaten Far-agher with toilet-cleaning duties while Terry could orally reprimand her was inconsequential in Faragher, and properly so. What mattered was that both men took advantage of the power vested in them as agents of Boca Raton to facilitate their abuse. See Faragher, 524 U. S., at 801 (Silverman and Terry “implicitly threaten[ed] to mis-use their supervisory powers to deter any resistance or complaint.”). And when, assisted by an agency relationship, in-charge superiors like Silverman perpetuate a discriminatory work environment, our decisions have appropriately held the employer vicariously liable, subject to the above-described affirmative defense. See supra, at 3–4.B
Workplace realities fortify my conclusion that harassment by an employee with power to direct subordinates’ day-to-day work activities should trigger vicarious employer liability. The following illustrations, none of them hypothetical, involve in-charge employees of the kind the Court today excludes from supervisory status. 2
Yasharay Mack: Yasharay Mack, an African-American woman, worked for the Otis Elevator Company as an elevator mechanic’s helper at the Metropolitan Life Building in New York City. James Connolly, the “mechanic in charge” and the senior employee at the site, targeted Mack for abuse. He commented frequently on her “fantastic ass,” “luscious lips,” and “beautiful eyes,” and, using deplorable racial epithets, opined that minorities and women did not “belong in the business.” Once, he pulled her on his lap, touched her buttocks, and tried to kiss her while others looked on. Connolly lacked authority to take tangible employment actions against mechanic’s helpers, but he did assign their work, control their schedules, and direct the particulars of their workdays. When he became angry with Mack, for example, he denied her overtime hours. And when she complained about the mistreatment, he scoffed, “I get away with everything.” See Mack, 326 F. 3d, at 120–121, 125–126 (internal quotation marks omitted).
Donna Rhodes: Donna Rhodes, a seasonal highway maintainer for the Illinois Department of Transportation, was responsible for plowing snow during winter months. Michael Poladian was a “Lead Lead Worker” and Matt Mara, a “Technician” at the maintenance yard where Rhodes worked. Both men assembled plow crews and managed the work assignments of employees in Rhodes’s position, but neither had authority to hire, fire, promote, demote, transfer, or discipline employees. In her third season working at the yard, Rhodes was verbally assaulted with sex-based invectives and a pornographic image was taped to her locker. Poladian forced her to wash her truck in sub-zero temperatures, assigned her undesirable yard work instead of road crew work, and prohibited another employee from fixing the malfunctioning heating system in her truck. Conceding that Rhodes had been subjected to a sex-based hostile work environment, the Department of Transportation argued successfully in the District Court and Court of Appeals that Poladian and Mara were not Rhodes’s supervisors because they lacked authority to take tangible employment actions against her. See Rhodes v. Illinois Dept. of Transp., 359 F. 3d 498, 501–503, 506–507 (CA7 2004).
Clara Whitten: Clara Whitten worked at a discount retail store in Belton, South Carolina. On Whitten’s first day of work, the manager, Matt Green, told her to “give [him] what [he] want[ed]” in order to obtain approval for long weekends off from work. Later, fearing what might transpire, Whitten ignored Green’s order to join him in an isolated storeroom. Angered, Green instructed Whitten to stay late and clean the store. He demanded that she work over the weekend despite her scheduled day off. Dismissing her as “dumb and stupid,” Green threatened to make her life a “living hell.” Green lacked authority to fire, promote, demote, or otherwise make decisions affecting Whitten’s pocketbook. But he directed her activities, gave her tasks to accomplish, burdened her with undesirable work assignments, and controlled her schedule. He was usually the highest ranking employee in the store, and both Whitten and Green considered him the supervisor. See Whitten, 601 F. 3d, at 236, 244–247 (internal quotation marks omitted).
Monika Starke: CRST Van Expedited, Inc., an interstate transit company, ran a training program for newly hired truckdrivers requiring a 28-day on-the-road trip. Monika Starke participated in the program. Trainees like Starke were paired in a truck cabin with a single “lead driver” who lacked authority to hire, fire, promote, or demote, but who exercised control over the work environment for the duration of the trip. Lead drivers were responsible for providing instruction on CRST’s driving method, assigning specific tasks, and scheduling rest stops. At the end of the trip, lead drivers evaluated trainees’ performance with a nonbinding pass or fail recommendation that could lead to full driver status. Over the course of Starke’s training trip, her first lead driver, Bob Smith, filled the cabin with vulgar sexual remarks, commenting on her breast size and comparing the gear stick to genitalia. A second lead driver, David Goodman, later forced her into unwanted sex with him, an outrage to which she submitted, believing it necessary to gain a passing grade. See EEOC v. CRST Van Expedited, Inc., 679 F. 3d 657, 665–666, 684–685 (CA8 2012).
In each of these cases, a person vested with authority to control the conditions of a subordinate’s daily work life used his position to aid his harassment. But in none of them would the Court’s severely confined definition of su-pervisor yield vicarious liability for the employer. The senior elevator mechanic in charge, the Court today tells us, was Mack’s co-worker, not her supervisor. So was the store manager who punished Whitten with long hours for refusing to give him what he wanted. So were the lead drivers who controlled all aspects of Starke’s working environment, and the yard worker who kept other employees from helping Rhodes to control the heat in her truck.
As anyone with work experience would immediately grasp, James Connolly, Michael Poladian, Matt Mara, Matt Green, Bob Smith, and David Goodman wielded employer-conferred supervisory authority over their victims. Each man’s discriminatory harassment derived force from, and was facilitated by, the control reins he held. Cf. Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 –71 (2006) (“Common sense suggests that one good way to discourage an employee . . . from bringing discrimination charges would be to insist that she spend more time performing the more arduous duties and less time performing those that are easier or more agreeable.”). Under any fair reading of Title VII, in each of the illustrative cases, the superior employee should have been classified a supervisor whose conduct would trigger vicarious liability. 3C
Within a year after the Court’s decisions in Faragher and Ellerth, the EEOC defined “supervisor” to include any employee with “authority to undertake or recommend tangible employment decisions,” or with “authority to di-rect [another] employee’s daily work activities.” EEOC Guidance 405:7654. That definition should garner “respect proportional to its ‘power to persuade.’ ” United States v. Mead Corp., 533 U. S. 218, 235 (2001) (quoting Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944) ). See also Crawford v. Metropolitan Government of Nashville and Davidson Cty., 555 U. S. 271, 276 (2009) (EEOC guidelines merited Skidmore deference); Federal Express Corp. v. Holowecki, 552 U. S. 389 –403 (2008) (same); Meritor, 477 U. S., at 65 (same). 4
The EEOC’s definition of supervisor reflects the agency’s “informed judgment” and “body of experience” in enforcing Title VII. Id., at 65 (internal quotation marks omitted). For 14 years, in enforcement actions and litigation, the EEOC has firmly adhered to its definition. See Brief for United States as Amicus Curiae 28 (citing numerous briefs in the Courts of Appeals setting forth the EEOC’s understanding).
In developing its definition of supervisor, the EEOC paid close attention to the Faragher and Ellerth framework. An employer is vicariously liable only when the authority it has delegated enables actionable harassment, the EEOC recognized. EEOC Guidance 405:7654. For that reason, a supervisor’s authority must be “of a sufficient magnitude so as to assist the harasser . . . in carrying out the harassment.” Ibid. Determining whether an employee wields sufficient authority is not a mechanical inquiry, the EEOC explained; instead, specific facts about the employee’s job function are critical. Id., at 405:7653 to 405:7654. Thus, an employee with authority to increase another’s workload or assign undesirable tasks may rank as a supervisor, for those powers can enable harassment. Id., at 405:7654. On the other hand, an employee “who directs only a limited number of tasks or assignments” ordinarily would not qualify as a supervisor, for her harassing conduct is not likely to be aided materially by the agency relationship. Id., at 405:7655.
In my view, the EEOC’s definition, which the Court puts down as “a study in ambiguity,” ante, at 21, has the ring of truth and, therefore, powerfully persuasive force. As a precondition to vicarious employer liability, the EEOC explained, the harassing supervisor must wield authority of sufficient magnitude to enable the harassment. In other words, the aided-in-accomplishment standard requires “something more than the employment relation itself.” Ellerth, 524 U. S., at 760. Furthermore, as the EEOC perceived, in assessing an employee’s qualification as a supervisor, context is often key. See infra, at 16–17. I would accord the agency’s judgment due respect.III
Exhibiting remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC’s Guidance, the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ. Trumpeting the virtues of simplicity and administrability, the Court restricts supervisor status to those with power to take tangible employment actions. In so restricting the definition of supervisor, the Court once again shuts from sight the “robust protection against workplace discrimination Congress intended Title VII to secure.” Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618, 660 (2007) (Ginsburg, J., dissenting).A
The Court purports to rely on the Ellerth and Faragher framework to limit supervisor status to those capable of taking tangible employment actions. Ante, at 10, 18. That framework, we are told, presupposes “a sharp line between co-workers and supervisors.” Ante, at 18. The definition of supervisor decreed today, the Court insists, is “clear,” “readily applied,” and “easily workable,” ante, at 10, 20, when compared to the EEOC’s vague standard, ante, at 22.
There is reason to doubt just how “clear” and “workable” the Court’s definition is. A supervisor, the Court holds, is someone empowered 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 responsi-bilities, or a decision causing a significant change in benefits.’ ” Ante, at 9 (quoting Ellerth, 524 U. S., at 761). Whether reassignment authority makes someone a supervisor might depend on whether the reassignment carries economic consequences. Ante, at 16, n. 9. The power to discipline other employees, when the discipline has economic consequences, might count, too. Ibid. So might the power to initiate or make recommendations about tangible employment actions. Ante, at 15, n. 8. And when an employer “concentrates all decisionmaking authority in a few individuals” who rely on information from “other workers who actually interact with the affected employee,” the other workers may rank as supervisors (or maybe not; the Court does not commit one way or the other). Ante, at 26.
Someone in search of a bright line might well ask, what counts as “significantly different responsibilities”? Can any economic consequence make a reassignment or disciplinary action “significant,” or is there a minimum threshold? How concentrated must the decisionmaking authority be to deem those not formally endowed with that authority nevertheless “supervisors”? The Court leaves these questions unanswered, and its liberal use of “mights” and “mays,” ante, at 15, n. 8, 16, n. 9, 26, dims the light it casts. 5
That the Court has adopted a standard, rather than a clear rule, is not surprising, for no crisp definition of supervisor could supply the unwavering line the Court desires. Supervisors, like the workplaces they manage, come in all shapes and sizes. Whether a pitching coach supervises his pitchers (can he demote them?), or an artistic director supervises her opera star (can she impose significantly different responsibilities?), or a law firm associate supervises the firm’s paralegals (can she fire them?) are matters not susceptible to mechanical rules and on-off switches. One cannot know whether an employer has vested supervisory authority in an employee, and whether harassment is aided by that authority, without looking to the particular working relationship between the harasser and the victim. That is why Faragher and Ellerth crafted an employer liability standard embracive of all whose authority significantly aids in the creation and perpetuation of harassment.
The Court’s focus on finding a definition of supervisor capable of instant application is at odds with the Court’s ordinary emphasis on the importance of particular circumstances in Title VII cases. See, e.g., Burlington Northern, 548 U. S., at 69 (“[T]he significance of any given act of retaliation will often depend upon the particular circumstances.”); Harris, 510 U. S., at 23 (“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.”). 6 The question of supervisory status, no less than the question whether retali-ation or harassment has occurred, “depends on a constellation of surrounding circumstances, expectations, and relationships.” Oncale, 523 U. S., at 81–82. The EEOC’s Guidance so perceives.B
As a consequence of the Court’s truncated conception of supervisory authority, the Faragher and Ellerth framework has shifted in a decidedly employer-friendly direction. This realignment will leave many harassment victims without an effective remedy and undermine Title VII’s capacity to prevent workplace harassment.
The negligence standard allowed by the Court, see ante, at 24, scarcely affords the protection the Faragher and Ellerth framework gave victims harassed by those in control of their lives at work. Recall that an employer is negligent with regard to harassment only if it knew or should have known of the conduct but failed to take appropriate corrective action. See 29 CFR §1604.11(d); EEOC Guidance 405:7652 to 405:7653. It is not uncommon for employers to lack actual or constructive notice of a harassing employee’s conduct. See Lindemann & Grossman 1378–1379. An employee may have a reputation as a harasser among those in his vicinity, but if no complaint makes its way up to management, the employer will escape liability under a negligence standard. Id., at 1378.
Faragher is illustrative. After enduring unrelenting harassment, Faragher reported Terry’s and Silverman’s conduct informally to Robert Gordon, another immediate supervisor. 524 U. S., at 782–783. But the lifeguards were “completely isolated from the City’s higher management,” and it did not occur to Faragher to pursue the matter with higher ranking city officials distant from the beach. Id., at 783, 808 (internal quotation marks omitted). Applying a negligence standard, the Eleventh Circuit held that, despite the pervasiveness of the harassment, and despite Gordon’s awareness of it, Boca Raton lacked constructive notice and therefore escaped liability. Id., at 784–785. Under the vicarious liability standard, however, Boca Raton could not make out the affirmative defense, for it had failed to disseminate a policy against sexual harassment. Id., at 808–809.
On top of the substantive differences in the negligence and vicarious liability standards, harassment victims, under today’s decision, are saddled with the burden of proving the employer’s negligence whenever the harasser lacks the power to take tangible employment actions. Faragher and Ellerth, by contrast, placed the burden squarely on the employer to make out the affirmative defense. See Suders, 542 U. S., at 146 (citing Ellerth, 524 U. S., at 765; Faragher, 524 U. S., at 807). This allocation of the burden was both sensible and deliberate: An employer has superior access to evidence bearing on whether it acted reasonably to prevent or correct harassing behavior, and superior resources to marshal that evidence. See 542 U. S., at 146, n. 7 (“The employer is in the best position to know what remedial procedures it offers to employees and how those procedures operate.”).
Faced with a steeper substantive and procedural hill to climb, victims like Yasharay Mack, Donna Rhodes, Clara Whitten, and Monika Starke likely will find it impossible to obtain redress. We can expect that, as a consequence of restricting the supervisor category to those formally empowered to take tangible employment actions, victims of workplace harassment with meritorious Title VII claims will find suit a hazardous endeavor. 7
Inevitably, the Court’s definition of supervisor will hinder efforts to stamp out discrimination in the workplace. Because supervisors are comparatively few, and employees are many, “the employer has a greater opportunity to guard against misconduct by supervisors than by common workers,” and a greater incentive to “screen [supervisors], train them, and monitor their performance.” Faragher, 524 U. S., at 803. Vicarious liability for employers serves this end. When employers know they will be answerable for the injuries a harassing jobsite boss inflicts, their incentive to provide preventative instruction is heightened. If vicarious liability is confined to supervisors formally empowered to take tangible employment actions, however, employers will have a diminished incentive to train those who control their subordinates’ work activities and schedules, i.e., the supervisors who “actually interact” with employees. Ante, at 26.IV
I turn now to the case before us. Maetta Vance worked as substitute server and part-time catering assistant for Ball State University’s Banquet and Catering Division. During the period in question, she alleged, Saundra Davis, a catering specialist, and other Ball State employees subjected her to a racially hostile work environment. Applying controlling Circuit precedent, the District Court and Seventh Circuit concluded that Davis was not Vance’s supervisor, and reviewed Ball State’s liability for her conduct under a negligence standard. 646 F. 3d 461, 470–471 (2011); App. to Pet. for Cert. 53a–55a, 59a–60a. Because I would hold that the Seventh Circuit erred in restricting supervisor status to employees formally empowered to take tangible employment actions, I would remand for application of the proper standard to Vance’s claim. On this record, however, there is cause to anticipate that Davis would not qualify as Vance’s supervisor. 8
Supervisor status is based on “job function rather than job title,” and depends on “specific facts” about the working relationship. EEOC Guidance 405:7654. See supra, at 13. Vance has adduced scant evidence that Davis controlled the conditions of her daily work. Vance stated in an affidavit that the general manager of the Catering Division, Bill Kimes, was charged with “overall supervision in the kitchen,” including “reassign[ing] people to perform different tasks,” and “control[ling] the schedule.” App. 431. The chef, Shannon Fultz, assigned tasks by preparing “prep lists” of daily duties. Id., at 277–279, 427. There is no allegation that Davis had a hand in creating these prep lists, nor is there any indication that, in fact, Davis otherwise controlled the particulars of Vance’s workday. Vance herself testified that she did not know whether Davis was her supervisor. Id., at 198.
True, Davis’ job description listed among her responsibilities “[l]ead[ing] and direct[ing] kitchen part-time, substitute, and student employee helpers via demonstration, coaching, and overseeing their work.” Id., at 13. And another employee testified to believing that Davis was “a supervisor.” Id., at 386. But because the supervisor-status inquiry should focus on substance, not labels or paper descriptions, it is doubtful that this slim evidence would enable Vance to survive a motion for summary judgment. Nevertheless, I would leave it to the Seventh Circuit to decide, under the proper standard for super-visory status, what impact, if any, Davis’ job description and the co-worker’s statement should have on the determination of Davis’ status. 9V
Regrettably, the Court has seized upon Vance’s thin case to narrow the definition of supervisor, and thereby manifestly limit Title VII’s protections against workplace harassment. Not even Ball State, the defendant-employer in this case, has advanced the restrictive definition the Court adopts. See supra, at 5. Yet the Court, insistent on constructing artificial categories where context should be key, proceeds on an immoderate and unrestrained course to corral Title VII.
Congress has, in the recent past, intervened to correct this Court’s wayward interpretations of Title VII. See Lilly Ledbetter Fair Pay Act of 2009, 123Stat. 5, superseding Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618 (2007) . See also Civil Rights Act of 1991, 105Stat. 1071, superseding in part, Lorance v. AT&T Technologies, Inc., 490 U. S. 900 (1989) ; Martin v. Wilks, 490 U. S. 755 (1989) ; Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989) ; and Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) . The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.* * *
For the reasons stated, I would reverse the judgment of the Seventh Circuit and remand the case for application of the proper standard for determining who qualifies as a supervisor.
1 It is not altogether evident that Terry would qualify under the Court’s test. His authority to hire was subject to approval by higher management, Faragher v. Boca Raton, 524 U. S. 775, 781 (1998) , and there is scant indication that he possessed other powers on the Court’s list. The Court observes that Terry was able to “recommen[d],” and “initiat[e]” tangible employment actions. Ante, at 15, n. 8 (internal quotation marks omitted). Nothing in the Faragher record, however, shows that Terry had authority to take such actions himself. Far-agher’s complaint alleged that Terry said he would never promote a female lifeguard to the rank of lieutenant, 524 U. S., at 780, but that statement hardly suffices to establish that he had ultimate promotional authority. Had Boca Raton anticipated the position the Court today announces, the city might have urged classification of Terry as Far-agher’s superior, but not her “supervisor.”
2 The illustrative cases reached the appellate level after grants of summary judgment in favor of the employer. Like the Courts of Appeals in each case, I recount the facts in the light most favorable to the employee, the nonmoving party.
3 The Court misses the point of the illustrations. See ante, at 26–28, and nn. 15–16. Even under a vicarious liability rule, the Court points out, employers might escape liability for reasons other than the harasser’s status as supervisor. For example, Rhodes might have avoided summary judgment in favor of her employer; even so, it would have been open to the employer to raise and prove to a jury the Faragher/Ellerth affirmative defense, see supra, at 3–4. No doubt other bar-riers also might impede an employee from prevailing, for example, Whitten’s and Starke’s intervening bankruptcies, see Whitten v. Fred’s Inc., No. 8:08–0218–HMH–BHH, 2010 WL 2757005 (D. SC, July 12, 2010); EEOC v. CRST Van Expedited, Inc., 679 F. 3d 657, 678, and n. 14 (CA8 2012), or Mack’s withdrawal of her complaint for reasons not apparent from the record, see ante, at 27–28, n. 16. That, however, is no reason to restrict the definition of supervisor in a way that leaves out those genuinely in charge.
4 Respondent’s amici maintain that the EEOC Guidance is ineligible for deference under Skidmore v. Swift & Co., 323 U. S. 134 (1944) , because it interprets Faragher and Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998) , not the text of Title VII. See Brief for Society for Human Resource Management et al. 11–16. They are mistaken. The EEOC Guidance rests on the employer liability framework set forth in Faragher and Ellerth, but both the framework and EEOC Guidance construe the term “agent” in 42 U. S. C. §2000e(b).
5 Even the Seventh Circuit, whose definition of supervisor the Court adopts in large measure, has candidly acknowledged that, under its definition, supervisor status is not a clear and certain thing. See Doe v. Oberweis Dairy, 456 F. 3d 704, 717 (2006) (“The difficulty of classification in this case arises from the fact that Nayman, the shift supervisor, was in between the paradigmatic classes [of supervisor and co-worker]. He had supervisory responsibility in the sense of authority to direct the work of the [ice-cream] scoopers, and he was even authorized to issue disciplinary write-ups, but he had no authority to fire them. He was either an elevated coworker or a diminished supervisor.”).
6 The Court worries that the EEOC’s definition of supervisor will confound jurors who must first determine whether the harasser is a supervisor and second apply the correct employer liability standard. Ante, at 22–24, and nn. 13, 14. But the Court can point to no evidence that jury instructions on supervisor status in jurisdictions following the EEOC Guidance have in fact proved unworkable or confusing to jurors. Moreover, under the Court’s definition of supervisor, jurors in many cases will be obliged to determine, as a threshold question, whether the alleged harasser possessed supervisory authority. See supra, at 15–16.
7 Nor is the Court’s confinement of supervisor status needed to deter insubstantial claims. Under the EEOC Guidance, a plaintiff must meet the threshold requirement of actionable harassment and then show that her supervisor’s authority was of “sufficient magnitude” to assist in the harassment. See EEOC Guidance 405:7652, 405:7654.
8 In addition to concluding that Davis was not Vance’s supervisor, the District Court held that the conduct Vance alleged was “neither sufficiently severe nor pervasive to be considered objectively hostile for the purposes of Title VII.” App. to Pet. for Cert. 66a. The Seventh Circuit declined to address this issue. See 646 F. 3d 461, 471 (2011). If the case were remanded, the Court of Appeals could resolve the hostile environment issue first, and then, if necessary, Davis’ status as supervisor or co-worker.
9 The Court agrees that Davis “would probably not qualify” as Vance’s supervisor under the EEOC’s definition. Ante, at 28–29. Then why, one might ask, does the Court nevertheless reach out to announce its restrictive standard in this case, one in which all parties, including the defendant-employer, accept the fitness for Title VII of the EEOC’s Guidance? See supra, at 5.
SUPREME COURT OF THE UNITED STATES
MAETTA VANCE, PETITIONER v. BALL STATE UNIVERSITY
on writ of certiorari to the united states court of appeals for the seventh circuit
[June 24, 2013]
Justice Thomas, concurring.
I continue to believe that Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998) , and Faragher v. Boca Raton, 524 U. S. 775 (1998) , were wrongly decided. See ante, at 8. However, I join the opinion because it provides the narrowest and most workable rule for when an employer may be held vicariously liable for an employee’s harassment.
ORAL ARGUMENT OF DANIEL R. ORTIZ ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We'll hear argument next this morning in Case 11-556, Vance v. Ball State University.
Daniel R. Ortiz: Mr. Chief Justice, and may it please the Court:
This case concerns who counts and who does not count as a supervisor under Title VII.
The parties and the United States agree that the Seventh Circuit rule violates the holding of Faragher, the reasoning of Faragher and this Court's other central Title VII precedents, including Burlington Northern and Staub, and the common-sense meaning of the word “ supervisor ”.
The parties even agree as to the general legal standard, although they style it a little bit different -- differently, that those harassers whose employer-conferred authority over their victims enables or materially augments the harassment should count as supervisors.
This is not a standard, Your Honor, that imposes automatic liability on employers.
Victims must still prove actionable harassment, and employers can still take advantage of the Ellerth/Faragher affirmative defense.
Chief Justice John G. Roberts: Let's say you have a work room.
There are five people who work there.
And the employer has a rule that the senior employee gets to pick the music that's going to play all day long.
And the senior employee says to one of the other employees, you know, if you don't date me -- I know you don't like country music; if you don't date me, it's going to be country music all day long.
Now, that affects the daily activities of that other employee.
I would have thought, under your theory, that means that that senior employee is a supervisor.
Daniel R. Ortiz: No, Your Honor, because in that circumstance the adverse action would not amount to -- would not be severe.
Or, perhaps it would be pervasive--
Chief Justice John G. Roberts: Well, that could be -- that could be far more severe than, for example--
Justice Antonin Scalia: Hard rock instead of--
Chief Justice John G. Roberts: --It could be far more severe than simply saying, all right, you know, you're going to -- as in this case -- you're going to be cutting the celery rather than, you know, baking the bread, or whatever.
Daniel R. Ortiz: --Well, no, Your Honor, this is the -- the severity is an objective standard; it's not a subjective.
So in this case, someone's intense dislike -- maybe it's debilitating, subjective -- dislike of rock music, some forms of country music -- might impair the performance of some in the workplace; but, from an objective reasonable employee's standpoint, I don't believe that that would be the case.
Chief Justice John G. Roberts: Well, but, I mean, there are places where the environment -- you know, an assembly line or something like that -- where the task may not be that different, but how you -- the environment in which you have to perform them may be far more significant than whether or not you're attaching the door handles or the front fenders.
Daniel R. Ortiz: --Oh, for sure, Your Honor, but they have to be judged on a case-by-case basis.
Chief Justice John G. Roberts: Well, exactly.
And I would have thought the benefit of the Seventh Circuit's test was that you don't have to go through those case-by-case basis.
I think we can have a reasonable debate about whether the music you have to listen to for eight hours is objectively a significant enough interference with the daily activities to qualify under your test.
But the Seventh Circuit test makes clear -- it doesn't give any kind of immunity; it just makes clear what type of analysis is going to be applied to the allegation.
Daniel R. Ortiz: Well, Your Honor, the Respondent actually exaggerates the determinativeness of the Seventh Circuit rule, and the indeterminativeness -- both indeterminativeness and unpredictability of the Second Circuit rule.
The Seventh Circuit itself has recognized -- the judges in the Seventh Circuit itself have recognized that the rule does not really well fit the realities of the workplace.
It also just moves uncertainty from one category to another.
The category of supervisor may be a little bit tidier; but, under the Seventh Circuit's approach, the category of co-worker is very unpredictable.
The Seventh Circuit itself, in Doe v. Oberweis Dairy, recognized that once you move people who can take -- have this kind of power over their victims but can't actually take annual employment actions against them into the category of co-workers, all of a sudden you have to apply a sliding scale of negligence.
Not only that, but the jury is the one who applies it.
So for those categories -- this exact category of employee, Your Honor, the employer going forward has very little idea of whether -- what standard of care is that a particular jury would apply in that case and whether the jury would decide it is met or not.
The Seventh Circuit rule, in the overall, is no more determinative than the Second Circuit rule.
Also, Respondent points to no cases in the Second Circuit or the other circuits that have adopted this rule where courts have identified problems with its application.
Justice Samuel Alito: Well, could you point out what the materially augments rule means?
Could you provide a definition of that?
The authority to assign daily tasks has to be sufficient to do what?
Daniel R. Ortiz: --It has to be sufficient to enable the harasser to instill either fear in the victim that the victim should not turn the harasser in, or that it may have to do with the harasser's ability to control the physical location of the victim.
That can augment harassment.
If an harasser can steer a victim to a location where the harasser has an opportunity to harass, and, indeed, may have an opportunity to harass without other employees or other people in the company seeing in, that would materially augment--
Justice Samuel Alito: There are situations where the assignment of responsibilities is extremely unpleasant, and so it's easy to see how the testimony would apply in that situation.
But there are also a lot of situations, like the Chief Justice's example, where it's really very unclear.
I don't know how courts are going to -- how courts can grapple with that.
Daniel R. Ortiz: --Well, Your Honor, this--
Justice Samuel Alito: You said that being subjected to country music or hard rock or Wagner, you know, every single day in the workplace would not be sufficient.
I don't know.
Some people might think that it was -- that that is.
Daniel R. Ortiz: --Justice Alito, this part of the standard, particularly the materiality requirement, is meant to track this Court's standard in Burlington Northern, where it said that only actions that are materially adverse to the employee would count.
And this Court identified the materiality requirement there as actually working to make the standard more objective, not--
Justice Ruth Bader Ginsburg: Mr. Ortiz, why isn't the question that you're presenting academic in this case?
Because didn't the district judge say that there had been no showing that Davis' conduct was sufficiently severe or pervasive?
It wouldn't matter if the supervisor -- if the conduct was not sufficiently severe or pervasive harassment, and, equally, if the company responded every time a complaint was lodged.
The district court found both of those things, that it wasn't severe and pervasive, and that every time she complained an investigation was made.
Daniel R. Ortiz: --Justice Ginsburg, we actually tried to bring those things up before the Seventh Circuit, but the Seventh Circuit found it unnecessary to reach them because of its holding as to supervisory liability.
If this Court were to reverse the Seventh Circuit's affirmance of summary judgment of the district court, the case would then be remanded to the Seventh Circuit, where it could either look at these alternative -- these other holdings, or the thing would be -- it could be remanded at that point and sent back to the district court for another look.
The district court's reasoning, the Seventh Circuit noted, when it was talking about other incidents of harassment was very unusual.
What the district court did was it divided all of the incidents into two categories.
One category -- one category consisted of events that by themselves were not overtly racial in nature and the other category consisted of those events that were overtly racial in nature, where a racial epithet had been hurled at someone, for example, and said with respect to the first category, the things -- the events that on their face did not announce racial animosity, that there wasn't any racial nexus, so they didn't count, and swept all those events out and then looked at the remaining ones where the connection to racial animus was overt.
And it said, well, these, there may be some, but they just don't count.
So the Seventh Circuit itself discredited the reasoning of the district court in those very holdings.
Justice Elena Kagan: Mr. Ortiz, suppose I agree with your standard, but I just can't find on the record as it has been presented in this Court any evidence that Davis actually served as Vance's supervisor.
What -- I mean, what's your best -- so if that's true, I would be tempted to actually just decide the thing rather than to remand it.
So as against that approach, what is your best evidence that there was a supervisory relationship under your standard here?
Daniel R. Ortiz: First, Justice Kagan, it is important to keep in mind that the record was developed under the wrong legal standard.
But even considering that--
Justice Elena Kagan: Well, is that the case?
Is there evidence that you did not present because the Seventh Circuit applied a different standard?
Daniel R. Ortiz: --There was evidence that was probably not developed below because the Seventh Circuit's standard was so absolute.
But there is actually evidence in the record, we believe plenty of evidence, sufficient certainly to overcome summary judgment, although perhaps not enough for partial summary judgment on this question in our favor.
Justice Ruth Bader Ginsburg: What other than the job description?
The job description says that the catering specialist has authority to direct or lead the part-time employees.
But what concrete instances of Davis exercising supervisory authority over Vance is there in this record?
Daniel R. Ortiz: Well, Justice -- there is two separate questions, Justice Ginsburg.
One is instances of it; others is whether she has the authority or not.
Because this Court has held in Faragher itself that it is the authority that makes the difference, not the actual exercising of it in a particular case.
But let me go through what is in the record now, much of it which is in the Joint Appendix but not all, because we were not aware that we would be opposing a summary judgment motion before this Court.
First, William Kimes, who is the director of the university banquet and catering division, thus the head of this 60-some-person department.
Two employees testified that he told them that Davis was a supervisor.
One of them was Vance; that could be found on page 198 of the Joint Appendix.
Another is an employee who was in Vance's position named Dawn Knox, and that statement can be found on page 386 of the Joint Appendix.
William Kimes himself testified in his deposition that Davis, quote:
"Directed and led other employees in the kitchen. "
That can be found on page 367 of the Joint Appendix.
In an internal investigation by compliance officers at Ball State--
Justice Ruth Bader Ginsburg: What I mean is not the statement, well, she's a supervisor.
But comparable to Faragher, where the lifeguard who didn't have authority to hire her or fire her said, if you don't date me, you are going to be cleaning the toilets.
We don't have anything like that in this record.
Daniel R. Ortiz: --Well, there was no overt threat like that in the record, but the person who was hurling racial epithets at her was in a position of authority over her, both according to the job description, also according to her understanding, according--
Justice Ruth Bader Ginsburg: But that was also -- that would be for a very confined period.
It would only be when the -- when Vance was a part-time employee.
Once she is a full-time employee there isn't that.
Daniel R. Ortiz: --No, Your Honor.
There is two separate provisions in the job description which cover the whole period of time here.
The harassment started around September 2005, went in through August -- went to August 2007 with one incident, March 1st, I believe it was, 2008.
On January 1st, 2007, Ms. Vance received a promotion from part-time to full-time.
Page 13 on the Joint Appendix has this item that you pointed to, Justice, which specifically lists among the duties and responsibilities of the catering specialist leading and directing part-time employees.
However, page 12 of the Joint Appendix lists under positions supervised by the catering specialist, exactly Vance's position.
So when she moved from full-time -- sorry, from part-time to full-time in January 2007, the supervisory nexus in the job description merely jumped from page 13 to page 12.
But it was covered for that whole period of time.
Justice Samuel Alito: What was the most unpleasant thing that Davis could have assigned the Petitioner to do?
Could it be chopping onions all day, every day?
Daniel R. Ortiz: Certainly within the -- within the job duties that she traditionally did, the kind of things she had to work with, what she had to do, things like this, working with onions, chopping onions all day might be punishment.
Unfortunately again, though, the record wasn't developed under an understanding that all of this would be irrelevant.
Justice Samuel Alito: But that would materially augment?
Chopping onions all day would be enough?
Daniel R. Ortiz: Yes, Your Honor.
Justice Samuel Alito: Chopping -- how about chopping other things, just chopping?
You are the sous-chef, you are going to be chopping all day every day.
Would that be enough?
Daniel R. Ortiz: Possibly, Your Honor.
It depends, again, on questions which would depend upon how you had to chop, how heavy the knives were, whether you would get repetitive injuries.
Justice Ruth Bader Ginsburg: Mr. Ortiz, did she ever have that authority, because the record as far as we have it says that the work assignment, what Vance was doing, came from the chef or from Kimes, and the most that Davis did was transmit the chef's orders of where people would be stationed.
Daniel R. Ortiz: Your Honor, it is not quite clear at this point.
Vance, in an internal investigation at Ball State University, Ms. Vance told the compliance officer who was conducting the investigation that Davis delegated jobs to her in the kitchen.
That appears in Document 59-16 on page 2.
Justice Sonia Sotomayor: Counsel, may I interrupt a moment on--
Daniel R. Ortiz: Yes, Your Honor.
Justice Sonia Sotomayor: --following up on an issue raised in part by the Chief and by Justice Ginsburg.
Assuming that Davis was a direct supervisor, would there be an affirmative defense available to the employer?
Daniel R. Ortiz: For sure, Your -- for sure, Your Honor.
Justice Sonia Sotomayor: That would be your position?
Daniel R. Ortiz: Yes.
Justice Sonia Sotomayor: That this could not be grounds that someone who directs an employee's day-to-day activity should be treated like someone who hasn't actually undertaken the threat because the situations are different.
Daniel R. Ortiz: Yes, Your Honor.
This is -- this falls out of the structure of the affirmative defense as laid out in Ellerth and Faragher.
Justice Sonia Sotomayor: Is that what this fight is about?
What if we were to say that the EEOC's test governed or the Second Circuit test governed, but because of the nature of the difference between formal supervisors who take tangible work activities and informal supervisors who the employer would have less control over and less knowledge about their activities, that we would require an employee to complain.
Would that be a crazy rule, and why?
Daniel R. Ortiz: That this Court would require under those circumstances?
Justice Sonia Sotomayor: Would require, would permit the affirmative defense to be raised by an employer.
Daniel R. Ortiz: It doesn't actually map on well to the structure of the affirmative defenses laid out in Ellerth and Faragher.
Justice Sonia Sotomayor: No, but there is a difference between those supervisors who take direct activity, tangible direct actions, who are in power to do that, and supervisors who don't have that power, because supervisors who don't have that power are supervised -- their actions are supervised in a way that non-tangible employment supervisors are not.
Daniel R. Ortiz: Under the existing affirmative -- affirmative defense, as I understand it, Your Honor, an employee who doesn't complain, unless they are reasonable in not complaining, in most cases would make the affirmative defense unavailable to the employer.
Is it the question concerning the difference between unreasonably failing to complain--
Justice Sonia Sotomayor: No, it's whether, whether or not this whole fight is over that issue.
Daniel R. Ortiz: --That -- this whole -- the fight is in -- in part about that issue.
That is certainly not the only--
Justice Sonia Sotomayor: No, because it's also about the burden of proof.
Daniel R. Ortiz: --Yes.
Justice Sonia Sotomayor: So if we keep the burden of proof with respect to the employer raising the affirmative defense, does that solve half your problem?
Daniel R. Ortiz: Yes, Your Honor.
It makes it better.
And this Court has recognized the affirmative defense appropriately allocates the burdens between the employee and the employer going forward.
Your Honor, the Seventh Circuit rule, although unsupported by Respondent, is supported by several of the Respondents' amici.
As I said, they tend to oversell the determinativeness of the Seventh Circuit rule.
They exaggerate the -- the uncertainties that they predict will happen under the--
Justice Sonia Sotomayor: Would you tell me what you see as the major difference between the EEOC and the Second Circuit rule, and why one is compelled over the other?
It's the regulatory agency charged with oversight of -- of the implementation of the statute.
Why shouldn't we give deference to it on--
Daniel R. Ortiz: --Your Honor--
Justice Sonia Sotomayor: --the standard it sets forth?
Daniel R. Ortiz: --it is -- it is entitled to deference under Skidmore, no more.
And it is our understanding, although the government--
Justice Antonin Scalia: Excuse me.
Why -- why -- why no more?
Why just Skidmore?
Daniel R. Ortiz: --Because it's -- it's only informal guidance, Your Honor.
It hasn't gone through rulemaking, formal adjudication and those processes which elevate the amount of deference--
Justice Antonin Scalia: That's an absolute rule?
Daniel R. Ortiz: --Well, Your Honor, it's a little bit contentious on this Court.
No, Your Honor, it's a little bit contentious on this Court; but, following Head Products, for example, it wouldn't be entitled to more than Skidmore deference.
Justice Ruth Bader Ginsburg: Have you answered the argument it shouldn't get any deference because what -- what the EEOC guidance does is it is -- it is interpreting two decisions of this Court, and this Court, not the EEOC, is in the best position to determine what those two cases mean?
Daniel R. Ortiz: Well, what it is, Your Honor, is it represents an interpretation of the word “ agent ” in Title VII.
Now, where -- where the statute -- the statutory term gives off and this Court's interpretation begins is, in some cases, a tough question.
But in this case, the EEOC -- the EEOC is really giving definition to the word “ agent ” in Title VII, not so much this Court's interpretations in Faragher and Ellerth.
If there are no further questions, Your Honor, I would like to reserve my remaining time for rebuttal.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF SRI SRINIVASAN, FOR UNITED STATES, AS AMICUS CURIAE, IN SUPPORT OF NEITHER PARTY
Sri Srinivasan: Thank you, Mr. Chief Justice, and may it please the Court:
When a person controls a subordinate's daily work activities and subjects her to harassment, that person qualifies as a supervisor for purposes of the Faragher-Ellerth vicarious liability affirmative defense framework.
When it controls daily work activities and, therefore, for example, can compel the cleaning of toilets for a year, the principle that the agency relationship augments the ability to carry out the harassment is implicated in that the victim will lack the same ability to resist the harassment or to report it as would be the case if the harassment were conducted by a coworker that--
Chief Justice John G. Roberts: What about -- what about the music hypothetical?
Sri Srinivasan: --Well--
Chief Justice John G. Roberts: Where -- where do you think your test comes out on that?
Sri Srinivasan: --I think it comes out, most likely, against concluding that the person is a supervisor.
And the reason is that, under the EEOC enforcement guidance, that accounts for situations in which the authority is exercised over a limited field, a limited number of tasks or assignments.
And this is at page 92(a) of the petition appendix.
And I think that would qualify under that provision because it's limited.
Chief Justice John G. Roberts: Why -- it doesn't really have to do with the number of tasks.
It isn't an assignment of tasks.
It's something that clearly affects the daily activities of the employee in a way that could be used to implement or facilitate harassment.
Sri Srinivasan: It could, Your Honor.
I don't disagree with that, and I don't disagree that there are going to be cases that raise issues at the margins.
But one way to think about the spectrum of options available to the Court today is to envision that on one end, you have harassment that's perpetrated by a coworker, and you consider the types of harassment that that might entail.
And on the other end, you have harassment that's perpetrated by a supervisor with authority over tangible employment actions.
Chief Justice John G. Roberts: And -- and your tests sort of use that, just as you've posed it, as some broad continuum in which we're going to have countless cases trying to figure out whether music falls closer to this end or, you know, what -- the senior employee controls the thermostat, is that closer to this end or that end?
Or cutting onions?
It seems to me that every single case has its own peculiar facts, and courts are going to be -- have to figure out where on the continuum it resides.
Sri Srinivasan: Well -- well, I guess, Your Honor, as Your Honor put it to -- to Petitioner's counsel, the competing approach would be the approach adopted by the Seventh Circuit; but, that approach has some serious flaws.
For example, it wouldn't cover the supervisor's conduct that was at issue in Faragher itself, where the supervisor threatened that he would make the harassment victim clean the toilets for a year if she didn't succumb to the harassment.
And I think that's a pretty significant cost.
Justice Samuel Alito: Well, isn't cleaning the toilets a limited -- isn't the authority to decide who cleans the toilets the same as the authority to decide what the music is going to be?
It's one thing.
I thought -- and your answer on the music was, well, that probably wouldn't count because it's the authority to decide just one thing.
Sri Srinivasan: Well, we don't -- I guess, we don't know enough about the threat to force her to clean the toilets for a year to know whether it's only one thing.
But it could be, for example, that if there -- in the scope of a particular day, you have three particular options as to what you might do, monitor the beach, clean the facilities, including the toilets, or prepare meals, then it's something that covers the entire day.
Justice Samuel Alito: But your argument is if the only authority was to decide who cleans the toilets, then -- then that would not -- that wouldn't count, because that's just one thing.
Sri Srinivasan: No, I think that -- I don't think we have an answer to that until we know how much of the day's work is encompassed by cleaning the toilets.
Justice Ruth Bader Ginsburg: I thought in Faragher it was that -- that the lifeguard gave her her daily work assignments.
He controlled what she would do on the job.
Sri Srinivasan: He -- he controlled every aspect of her -- of her day's work, and cleaning the toilets was one aspect of it.
So that was a particularly poignant example that he visited on her as a way to perpetuate the harassment.
Justice Samuel Alito: Well, that can't possibly be what the case means.
Suppose that it's -- it's the assignment of offices, and all of the offices except one have heating and air conditioning, but one has no heating and no air conditioning.
And so -- and that's the only authority that this person has is to assign desks.
That person says, if you don't do whatever it is that I want you to do, I'm putting you in the office where there's no heating, and there's no air conditioning.
And you would say that doesn't count because it's just one thing.
It's not a broad range of authorities -- of authorities.
Sri Srinivasan: It doesn't constitute authority over daily work activities.
And I guess that's what the EEOC guidance authorities--
Justice Stephen G. Breyer: Have you--
Sri Srinivasan: --We haven't encountered it in real cases.
Justice Stephen G. Breyer: --Well, you've looked this up.
And apparently, for about a dozen years, the EEOC has had, as -- as an alternative basis for qualifying as a supervisor, the individual has authority to direct the employee's daily work activities.
And in addition, we have three circuits that for some period of years have been following roughly the same kind of rule.
Now, has this problem of the country music or the other problems raised, have they turned out to be a significant problem in those circuits or for the EEOC?
Sri Srinivasan: They haven't, Justice Breyer.
Justice Stephen G. Breyer: They have, or they have not?
Sri Srinivasan: They have not.
They have not turned out to be an issue, and that's what--
Chief Justice John G. Roberts: How do you know that?
Are you just saying they have not generated actual Federal -- Federal court reported cases?
Do you have any idea how this works on the ground when people complain about the exercise of authority by a coworker who has specific responsibilities that might be reviewed as supervisory?
Sri Srinivasan: --Well, they haven't -- I guess that's two components to the answer, Mr. Chief Justice -- they haven't generated reported or underreported decisions, as far as we've seen.
And this is not scientific, and it's just based on our conversations with the EEOC lawyers who are charged with dealing with right to sue letters and the like.
They haven't encountered these sorts of situations.
Chief Justice John G. Roberts: The EEOC lawyers think the EEOC plan is working just fine.
Sri Srinivasan: Well, that -- I -- I understand that that's not entirely surprising, but--
Justice Stephen G. Breyer: But I guess they'd tell you.
There are three who signed the brief, or four.
And I guess they'd tell you, wouldn't they--
Sri Srinivasan: --Right.
Justice Stephen G. Breyer: --what the problems are, if they have problems.
Sri Srinivasan: Right.
In our conversations with them about the way in which these issues arise--
Justice Stephen G. Breyer: I mean, we can ask the other side the same question.
They've seen the cases in the circuits.
Have they seen instances in the EEOC or before the circuits where it's turned out to be a serious problem, like the country music or any of the other hypotheticals raised?
Sri Srinivasan: --And I don't think it has, Justice Breyer.
And I think it's important to bear in mind that the nature of this inquiry is such that there's going to be cases at the margins that raise difficult questions; but, in Ellerth, the Court recognized that.
Justice Elena Kagan: Could I ask you how the Seventh Circuit test works in operation?
We're in a university setting here, so let me give you a university hypo.
There's a professor, and the professor has a secretary.
And the professor subjects that secretary to living hell, complete hostile work environment on the basis of sex, all right?
But the professor has absolutely no authority to fire the secretary.
What would the Seventh Circuit say about that situation?
Sri Srinivasan: That if there's no authority over -- to -- to direct annual employment actions, then--
Justice Elena Kagan: No, no, the secretary is fired by the head of secretarial services.
Professors don't have the ability to fire secretaries; but, professors do have the ability to make secretarial lives living hells.
So what does the Seventh Circuit say about that?
Sri Srinivasan: --The professor would not qualify as a supervisor for purposes of Ellerth-Faragher framework.
Justice Elena Kagan: Under the Seventh Circuit test.
Sri Srinivasan: And so you'd look at it as a -- you'd look at the professor as a coworker, and you'd apply the same standards that applied to harassment conducted by the coworker.
Justice Elena Kagan: Even though, of course, it's actually more difficult for the secretary to complain about the professor than it would be for the secretary to complain about the head of secretarial services.
Sri Srinivasan: Yes.
And I think that's a useful frame of reference that I was trying to articulate earlier, which is that we can envision the cases as falling on a spectrum between ability to complain when the harassment is perpetrated by a coworker on the one hand, and ability to complain when harassment is perpetrated by a supervisor with tangible employment authority--
Justice Elena Kagan: And Mr. Srinivasan, if I can just continue on about this, because I just don't even understand the Seventh Circuit test.
Would the Seventh Circuit test also say that -- that that person is not a supervisor even if the professor evaluates the secretary on a yearly basis?
Sri Srinivasan: --The Seventh Circuit would say that as far as we can tell.
They don't appear to have a proviso for circumstances in which the harasser has a role in determining tangible employment actions, because that is one thing that the EEOC guidance takes account of.
It's that -- not just that somebody counts as a supervisor when they themselves undertake tangible employment action, but if they have a substantial role in making recommendations that in turn trigger tangible employment actions, the EEOC would take the position that that qualifies.
Now, that's not an issue in this case, but that's--
Chief Justice John G. Roberts: You've -- you've talked several times about this going along the spectrum.
Where -- where are we supposed to cut off the -- where's the cutting line in the spectrum?
Sri Srinivasan: --Well, I think that the -- control over daily work activities is where we would draw the line.
And that's what has come up the most in the cases.
The reported decisions have conflicts on -- have a conflict on that issue, and that is where the EEOC guidance draws the line.
Now, I think it would be helpful, if the Court were going to issue an opinion that adopts that line, to elaborate on -- on that line a little bit in the following sense: That relaying instructions that are -- that are disseminated by one person wouldn't count for those purposes.
That's in the EEOC guidance.
And -- and it's the functions of a job that actually matter, not the job title.
That is also in the EEOC guidance.
So I think there are some aspects of the EEOC guidance that elaborate on that line about control over daily activities that I think I would commend to the Court, that it might well--
Justice Sonia Sotomayor: Do we have a developed record enough to do that in this case?
Sri Srinivasan: --I'm sorry?
I didn't hear you.
Justice Sonia Sotomayor: Do -- do we have a developed record enough?
Petitioner's counsel says we don't, that the Seventh Circuit test didn't permit them to develop the record sufficiently to clarify all of these issues.
We certainly have snippets or -- or lack snippets, as the case may be.
But is the record sufficiently developed for the Court to even pronounce -- make pronouncements of that nature?
Sri Srinivasan: I think -- I think the real question, Justice Sotomayor, is whether the parties had a sufficient opportunity to develop the record.
Because if you take the record in the case as a given, we think that the record would support the grant of summary judgment for Ball State University, because there isn't a sufficient showing in the record if you take it as a given that the relevant supervisory -- the relevant putative supervisory employee, Davis, has control over day-to-day work activities.
The question that remains is whether the record should be allowed to be expanded.
Justice Samuel Alito: The conclusion in your brief is that the judgment of the court of appeals should be vacated and the case remanded for further proceedings, and now -- now you are telling us that we should -- we should basically write an opinion on summary judgment.
Sri Srinivasan: No.
I think if you take the record as a given, that a grant of summary judgment in favor of the employer would be in order.
But in the normal course what this Court does when it announces a new standard is it remands for the lower courts to deal with the application of the standard to the facts.
And the conclusion in our brief is just, I think, a parroting of that normal conclusion.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE RESPONDENTS
Gregory G. Garre: Thank you, Mr. Chief Justice, and may it please the Court:
The judgment of the court of appeals should be affirmed because the record establishes that the only employees whose status is at issue lacked the supervisory authority necessary to trigger vicarious liability under Title VII.
Justice Samuel Alito: We took this case to decide whether the Faragher and Ellerth -- and Ellerth supervisory liability rule is limited to those harassers who have the power to hire, fire, demote, promote, transfer, or discipline their victim.
And your answer to that is no; is that right?
Gregory G. Garre: That's right.
We don't think the Seventh Circuit test is the complete answer to the question of who may qualify as a supervisor.
But we think it's clear that the -- the person whose status is at issue did not qualify and therefore, the judgment should be affirmed.
Justice Samuel Alito: All right.
Well, if we -- if we agree with that without having any party defending the rule that was adopted by three circuits, then surely -- well, then, why shouldn't we just remand this case for the lower courts to decide this, this summary judgment issue, and -- and permit further development of the record if the record isn't fully developed?
Gregory G. Garre: --Well, most importantly, Justice Alito, because the courts need guidance on how to apply the EEOC and the Second Circuit standard.
The best way to provide that guidance is to do what this Court often does, which is to apply the facts to the standard.
In this case, applying the record facts to the standard that we think applies, the “ materially enables the harassment ” standard, it's clear that Ms. Davis, the person who is at issue, does not qualify as a supervisor.
And the reason why it's clear is the record is uncontradicted that either the chef or Mr. Kimes made the daily assignments through the prep sheets.
The prep sheets are what every employee in the kitchen got each day and they would tell you: Dice vegetables for 60 people; prepare boxed lunches for 20; prepare six vegetable trays.
That's -- that was their daily assignments, and the record is absolutely clear, JA 2 -- 277, 278, JA 424 -- that all the employees got the prep sheets from the chef or Mr. Kimes.
It's also absolutely clear that Mr. Kimes was the one who controlled the schedule in the kitchen.
He is the one that told employees what times of days that they could work.
He controlled the schedule.
Justice Samuel Alito: I understand Mr. Ortiz to say that there's at least a dispute of fact about whether Davis could have controlled what Petitioner did on a daily basis.
Gregory G. Garre: There is -- there is neither a material nor genuine dispute on that, Your Honor.
It at the very--
Justice Samuel Alito: Doesn't her job description say that she can assign tasks in the kitchen?
Gregory G. Garre: --But they -- they omit the -- the clause that follows, which is critical, which is
"via demonstration, coaching, or overseeing to ensure efficiency. "
That is on page Joint Appendix 13.
And that job description has to be read in light of the record that makes crystal clear that it was the chef who did the daily assignments for the prep sheets.
And there -- and there are examples of the prep sheets as an exhibit to Ms. Fultz's affidavit, the affidavits at 424 of the Joint Appendix.
The -- the exhibits are LLL and JJJ--
Justice Antonin Scalia: We didn't take this case to -- to decide those factual questions.
Gregory G. Garre: --Your Honor, you--
Justice Antonin Scalia: We really didn't.
We took it principally to decide whether the Seventh Circuit rule was -- was right or not.
And you don't even defend that.
So there is nobody here defending the Seventh Circuit.
Gregory G. Garre: --Well, Your Honor has excellent briefing defending the Seventh Circuit.
The Chamber of Commerce and other amici have defended it.
We certainly think that it -- that -- that it's a superior--
Justice Antonin Scalia: They are not talking to us here, are they?
Gregory G. Garre: --No, Your Honor.
We think it's a superior bright line, but, as we say in our brief, we think that ultimately this Court's precedents compel that the Court reject that.
And I think most -- most squarely we look at the Faragher decision.
We look at lifeguard Silverman in Faragher, who had the authority to control all aspects of the victim's schedule and daily activities in a virtually unchecked manner.
So if the Court is looking for an example that it wants to point to of someone who could qualify under the non-Seventh Circuit category, we think that lifeguard Silverman, from this Court's precedents, would be the example that this Court would hold out.
Justice Ruth Bader Ginsburg: Was that -- that question wasn't presented.
It was -- it was just assumed that -- that Silverman would qualify as a -- as a supervisor.
Gregory G. Garre: That -- that's absolutely right, Justice Ginsburg.
And I think, for some of the reasons that Justice Kagan brought up in her colloquy with -- with Mr. Srinivasan, I think the logic of the Court's precedents, agency principles adopted, would lead to the conclusion that someone who does control virtually all aspects of one's schedule but yet lacks the authority to hire, fire, or demote, nevertheless still would be qualified as someone who--
Chief Justice John G. Roberts: Every -- every time -- every time you adopt a rule rather than a multifactor analysis, there are going to be particular cases that fall outside the rule that look like a harsh result.
Now, here it simply affects the nature.
It doesn't give any immunity for harassment, it just affects the nature of the showing that might be made.
You have no difficulty, as representing an employer, by saying that in every case an allegation of this sort is made you have to go through a case-by-case description of the particular responsibilities, whether it's the thermostat, whether it's the music, whether it's the assignment of everything that the employee does, and decide on that basis whether or not you should compensate the victim, or -- or whether or not you should go to court?
Gregory G. Garre: --We do have great difficulty, Your Honor.
First of all, if we are wrong about what this Court's precedents compel, then this Court should adopt the Seventh Circuit principle, and we've -- we've said that in our brief, if we're wrong in our understanding of the Court's precedents.
Secondly, we think that the -- the Court can and should establish meaningful limits on what this broader category of supervisors would require, and I think the case law illustrates that.
If you look at the leading circuits who apply the standard--
Chief Justice John G. Roberts: Well, I think -- I think your friend on the other side was -- made a good point in his reply brief, which is the variety of circumstances you think courts should look at just happen to correspond with the factual issues that you would have resolved in your favor.
Gregory G. Garre: --Well, I -- I would take issue with that.
We -- we tried to provide guideposts that would be helpful.
But if you look at, for example, the principle that the EEOC agrees with, which -- which is just that limited or marginal occasion authority to lead or oversee by virtue of a paper title, its grade, or seniority is not sufficient.
Justice Antonin Scalia: What does that have to do with agency?
That's what I don't understand.
Why -- why do any of these tests have to do with agency?
Gregory G. Garre: Well, Your Honor--
Justice Antonin Scalia: I mean, I can understand Congress writing a statute that says, you know, any -- any person given -- given authority by the employer, which authority is used to make it more difficult for a person to complain about racial or sexual harassment, is bad.
But the statute doesn't say that.
It says apply agency principles.
How does agency have anything to do with the line you're arguing that we take here?
Gregory G. Garre: --What this Court said in Faragher and Ellerth -- and I appreciate that you dissented in the case, but what this Court said was it adopted section 219(2)(d) of the Restatement, Second, of Agency, the notion that if -- if there was -- if the employee was aided in the accomplishment of the harassment by virtue of an agency relation, that that would be the agency trigger for liability.
Justice Antonin Scalia: Then why not leave it there?
If that's what the agency is--
Gregory G. Garre: And RMA then--
Justice Antonin Scalia: --then you don't need it at all.
So the music -- the music would -- the thermostat would qualify.
It would all qualify.
Gregory G. Garre: --I don't think it would, Your Honor, because we agree, certainly, with the EEOC that there are material limits to how far that principle could be stretched.
The Court in Ellerth made clear that there were limits to the vicarious liability of employers in this context.
Justice Antonin Scalia: Why?
I mean, if that's your principle, apply the principle.
Gregory G. Garre: Well, for the very--
Justice Antonin Scalia: If you are aided, you know, you're going to work in a cold room unless you, you know, comply with my sexual advances, apply the principle.
What's so hard about that?
That's a clear line.
Gregory G. Garre: --This is the balance I think that the Court struck in Ellerth, Your Honor, which was -- it took into account that the statute was passed against the backdrop of agency principles; but, yet, Congress also was cognizant that imposing vicarious liability on the employer for acts that the Court recognized were not themselves authorized by the employer, that that was a punitive aspect of that, and the Court would establish limits.
And I think our position takes into account that there have to be limits in this area, on the extent of vicarious liability, in order to give effect to Congress's intent; but, also recognizes, in the situation like you had with the lifeguard in Faragher, that that person did have authority that would assist in the harassment -- they made her clean the toilets, as the lifeguard in Faragher said.
And so the Court, I think, struck a reasonable balance.
And taking the balance and what this Court said, we think the proper way to resolve this case is to adopt something like the EEOC rule or the Second Circuit rule, but to make clear there are limits.
And the best way to make clear that there are limits is to make clear that on the record in this case Ms. Davis did not qualify as a supervisor.
Now, my friend said they didn't have the opportunity to develop evidence to the contrary; but, the fact is, from the outset, they litigated this case as if the Seventh Circuit standard did not apply.
The reasons that they gave for why Ms. Davis was a supervisor, in the lower court, was that, one, they pointed to the job description, that she had this other authority to “ lead and direct ”, and they also pointed to the fact that she didn't clock in.
Those are irrelevant under the Seventh Circuit test.
So all along, they had in their mind that they wanted to try to show that Davis was different, and it did have some marginal authority to lead--
Justice Samuel Alito: What guidance would your -- what guidance would the kind of opinion that you're suggesting we write really provide?
The -- the guidance would be that if someone has no authority to assign daily work, then that person isn't -- and also has no authority to hire, fire, promote, et cetera, then that person isn't a supervisor.
How much guidance is that?
Gregory G. Garre: --I think it's a lot of guidance, Justice Alito.
I think that the flip side of that is the Court would make clear that merely having some occasional or marginal authority to lead or direct by virtue of one's better paper title or seniority is not sufficient to trigger vicarious liability.
I think that's going to resolve the mine-run of the cases in which this question has come up and been litigated, at least to the courts of appeals.
If you look, for example, at the difference between something like the Mack case out of the Second Circuit and the Mikels case out of the Fourth Circuit, in Mikels, we had an example of two police officers, one had a higher paper rank, corporal versus private, and it was alleged that the corporal was a supervisor.
And the court said, no, no, no, he's not a supervisor, all there is, is some marginal occasional authority.
That's not sufficient.
It was clear that the victim in that case wasn't shy about telling the harasser where to go, to tell him off.
And that's the kind of--
Justice Ruth Bader Ginsburg: But why should that -- why should that matter?
I know you said that in your brief, Mr. Garre, if the alleged victim talked back.
But in one of the very first cases that we had in this line, Harris v. Forklift, there was -- it was the boss, so there was no question about supervisor, and he was really making things hard for this employee; but, she was very firm, and she talked back to him.
But, still, that's not what we said that counted.
We said, is she being subjected to terms and conditions of employment that she would not be subjected to but for her sex.
Gregory G. Garre: --Right.
And we -- we don't think that that's a dispositive criterion.
We recognize the point that the person gets to establish superior ability to stand up to despicable treatment.
But I think what our point is, is that it's part of the equation that you would look at.
In essence, did the person treat the alleged harasser like a co-employee, or did the person treat the alleged harasser like a supervisor?
And in this case, the record is clear that she treated her like a co-employee, someone who -- they obviously had disagreements among them.
And I think that's what we take this piece of evidence to assist the Court on the question presented.
I think -- but we think what was sufficient to resolve the question presented is the clear and unrefuted evidence that the prep sheets, the daily activities were assigned by the chef or Mr. Kimes, that Mr. Kimes had the authority to control the schedule.
And if you want to go further than that, the record also shows that Mr. Kimes had the authority to review -- to do annual reviews.
Mr. Kimes had the authority to evaluate.
He had all the kind of authority that one would expect in a supervisor.
So you would ask the question, what's left?
And whatever is left, we agree with the EEOC, is not, as a matter of law, sufficient to trigger vicarious liability.
That doesn't mean she can't present her claim.
It -- it means that it's just simply analyzed under the framework for co-workers, in which she bears the burden of establishing that the employer was negligent in not responding to it.
And as Judge Wood, for the court of appeals, and Judge Barker made clear in their detailed opinions, this was not a situation where the employer stuck its head in the sand and ignored incidents of unpleasantries or, in some cases, despicable racial epithets--
Justice Samuel Alito: If you were willing to concede that this would be a close case under the Second Circuit standard or under the EEOC guidance, then there might be an argument in favor of our applying those tests -- or one of those tests to the facts of the case, because then that might provide some guidance, even though we are supposed to be a court of review, not a court of first view.
But you're saying this is an extremely weak case under those standards; and, therefore, what is -- what benefit is there in our applying this?
Just send it back and have it done in the normal course by the court of appeals or by the district court.
Gregory G. Garre: --Well, Your Honor, we don't think it's a close case, but my friend does, and his amici do.
And I think the damaging signal that this Court would send by remanding on this record would be that, whatever it might say in its opinion, that would have virtually no force in terms of establishing a standard that made clear that this -- whatever else may be true about what would qualify, something like this does not qualify.
And, again, like this Court did in the Global Tech case, when the Court establishes a standard, oftentimes, it applies the standard to the facts and appreciates that that's the best way, the most judicial way of providing guidance on what that standard means.
Justice Sonia Sotomayor: Mr. Garre, there is one BSU internal document that -- a note to the file by a compliance officer, who apparently investigated one of the complaints, that says that -- Kimes is recorded as saying -- he's the avowed supervisor -- that he, quote,
"knows Davis has given direction to Vance, and that he just doesn't know what else to do. "
Doesn't that defeat summary judgment on its face?
Gregory G. Garre: It doesn't, Your Honor, if you agree with our principle, that the EEOC also agrees with, that having some limited or marginal authority to lead or direct as a matter of law is not sufficient.
So that that piece of evidence, even in its reasonable inference, would not be sufficient to create a material issue.
It also wouldn't be sufficient creating -- looking at the body of the evidence, which makes crystal clear that the prep sheets are really what was driving the daily activities in this workplace.
And it was Kimes or the chef that did the prep sheets, not Ms. Davis at all.
And it -- and it was also not material in light of the evidence that Mr. Kimes did the schedule.
Ms. Davis was asked at her deposition on page 135, quote, “ Was there ever ” --
"have you ever been assigned to a less meaningful or fulfilling job classification? "
And her response was yes, and she pointed to an example by Mr. Kimes, because it was Mr. Kimes who had the authority to make those assignments, not Ms. Davis.
So the mere fact that you've got some marginal evidence drawn from snippets, giving it a reasonable inference that she at times had some ability to lead or direct, as the job description says,
"by coaching, demonstration or overseeing. "
is not sufficient as a matter of law to entitle her to summary judgment, nor do we think that this Court should take the unusual step of remanding so that she can dig into events six years old through new discovery.
Justice Elena Kagan: Mr. Garre, could I ask you about that?
You said before that there is no -- nothing to suggest that she left anything on the table because of the nature of the Seventh Circuit standard.
So what's the best place in the record for us to look to decide that question as to whether she at all didn't present or didn't develop evidence because of the nature of the Seventh Circuit standard?
Gregory G. Garre: --Well, first, I would look at her summary judgment briefs, Your Honor, and in those briefs she argued that Davis was a supervisor because, one, under the job description she had the authority to lead and direct, the same sorts of things that we are talking now and would be talking about under the EEOC and Second Circuit tests.
And, two, she points to the fact that they didn't clock in, again something that is irrelevant under the Seventh Circuit test.
So this wasn't a case where the litigant felt themselves bound by the legal standard and one could surmise that they would have pursued it differently.
I think I would look at that first.
And then I would look at her deposition transcript which is in the Joint Appendix and the three affidavits that she put in, in this case, which are in the Joint Appendix.
At some point you would expect her to come along and try to rebut the notion that Mr. Kimes and Ms. Fultz assigned the daily activities through the prep sheets.
In fact, it's just the contrary.
If anything, in her own affidavit she seems to accept that the prep sheets were done by Kimes and the chef.
That's at JA 430.
You would expect her to contest the notion that Mr. Kimes was the one who did the scheduling, who did her annual reviews, who disciplined her on occasion.
After all, she was claiming that Davis was the supervisor, and she didn't feel bound by the Seventh Circuit tests.
So you would expect to see some indication of how Ms. Davis actually assigned her something to do, changed her schedule, the like.
Instead what you find is all those sorts of allegations, she made them, but all those sorts of allegations were directed to Mr. Kimes.
That was the basis for her retaliation claim, which isn't before the Court.
But there are all the sorts of things that you might expect one to complain about against a supervisor in this sort of vein: She made me cut vegetables instead of doing the baking like I like to do; she didn't assign me enough overtime so I could make more money; she changed my hours.
Those allegations were made.
They were directed at Mr. Kimes and that's perfectly consistent with the record evidence.
There was Kimes and the chef who had the authority to do her daily activities, and Kimes had the authority to do the schedule.
It's not enough for her to come here today, I don't think, and just speculate that having an opportunity to go through greater discovery, which in essence would amount to a fishing expedition, the Court should take the unusual step of remanding to give her an opportunity for discovery.
This Court -- although we acknowledge oftentimes this Court does remand for the lower courts to undertake that inquiry, it certainly doesn't always do so.
So Global-Tech is one example; we've cited many more in our briefs.
And here, I think, again, the parties -- there is broad agreement on what the standard should be.
Something like the EEOC or Second Circuit test is, we think, the best way to frame it.
But given the debate among the parties about what that test means and how it applies to Davis here, I think it's absolutely critical for the Court to apply the legal test to the record facts and hold that Ms. Davis is not a supervisor and to affirm the judgment below.
Although it's not before this Court, if one wants to go to the next step and think about the affirmative defenses and the like, this isn't a case where the Court would be putting to rest a valid Title VII claim.
But the claim was extensively looked at below by Judge Barker in the district court, Judge Wood and her colleagues on the court of appeals, and they found an environment in which Ball State reacted responsibly to the allegations that were made, investigated them and took prompt action where the investigation warranted it, particularly with respect to the most despicable things that were uncovered, racial epithets that were used by another employee, Ms. McVicker, not Ms. Davis.
The only allegations against Ms. Davis that we think are relevant here during the time period that Ms. Davis was a part-time employee were: One, the so-called elevator incident where Ms. Davis allegedly blocked Ms. Vance as she got out of the elevator, which isn't race-based at all, we don't think; and two, the alleged use of words like “ Sambo ” or “ Buckwheat ” to refer--
Justice Ruth Bader Ginsburg: Mr. Ortiz said it wasn't just part-time.
He called my attention to the page before that says she also -- that Davis also directed--
Gregory G. Garre: --Well, we disagree with that, Your Honor.
If you look on page JA 12, the job description position function, the last sentence says
"Requires leadership of up to 20 part-time substitute and student employees. "
So we think it's clear.
We said this is in our red brief and there wasn't any response to it in the yellow brief, that any authority, any conceivable supervisory authority, could have only existed when Ms. Vance was a part-time employee.
But we don't think that that's relevant, Your Honor, because putting aside whether she had authority over catering assistants who were part time or full time, the record is absolutely clear that Ms. Davis just lacked the authority that would have been sufficient to trigger vicarious liability.
And again we think the paradigm case where that authority is present is something like the lifeguard in Silverman where they control all aspects of the daily activities, one's schedule, one's daily work assignments, and down the line.
Here there is no evidence that any of that authority that was possessed, and the record makes clear beyond doubt that all that authority was possessed by others, Ms. -- the chef and Mr. Kimes.
And I think, as the amicus brief makes clear, this is consistent with workplaces across America today, where jobs are less hierarchical, more collaborative, and so where you have got more senior employees by virtue of their experience or job title, just a paper title, are in a broad sense team leaders of the like in the workplace.
That doesn't mean they are supervisors in any traditional sense, and it certainly doesn't mean they are supervisors for purposes of triggering vicarious liability under Title VII.
So for those reasons, we would urge this Court to affirm the judgment below, to make clear in order to provide the needed guidance to the courts of appeals and the assumption that something like the EEOC or Second Circuit standard does apply to determine who is a supervisor triggering vicarious liability.
Ms. Davis, the only employee who is at issue, does not meet that standard.
Chief Justice John G. Roberts: Thank you, counsel.
Gregory G. Garre: If you have no more questions, thank you.
Chief Justice John G. Roberts: Mr. Ortiz, you have 4 more minutes remaining.
REBUTTAL ARGUMENT OF DANIEL R. ORTIZ ON BEHALF OF THE PETITIONER
Daniel R. Ortiz: Thank you, Your Honor.
The Seventh Circuit rule is not one that can be justified in terms of its superior judicial manageability, administrability, despite producing a few odd results.
As Justice Kagan's question revealed, it produces truly perverse results.
Someone who can tell you what to do in your job day-to-day, manage you during the whole job period, what kind of tasks you have to do, was not necessarily considered a supervisor, while the person upstairs in human resources that you may never see or even know would be considered your supervisor.
Justice Anthony Kennedy: Well, if you adopted that rule I suppose you could couple it with an increased duty of care on the part of the employer to take necessary steps to prevent forbidden harassment.
In other words, you up the duty of care on the part of the employer generally.
Daniel R. Ortiz: Well, Justice Kennedy, that in fact is one thing the Seventh Circuit has tried to do, but it dispels any kind of certainty and predictability in the rule, because the duty of care of course would be determined by a jury only after hearing a particular case.
Second, my friend tries to get out from under the clear import of the job description here by saying directing and leading somehow don't count because that is accomplished through oversight.
Oversight, however, is a common synonym for supervision itself.
It's merely a dog chasing its own tail.
Third, it's no surprise that many of the things that Ms. Vance referred to, the particular instance she referred to went back to William Kimes.
Of course, that related to the retaliation part of her claim, which is not before this Court.
Also, Your Honor, Faragher in the end is not a toilet cleaning case.
The district court did not find -- made no finding on that.
The court of appeals didn't mention it.
This Court in its Faragher opinion mentioned only that it was an allegation in the complaint.
It is not clear -- the allegation of the complainant was that he said that, not that Silverman actually had that authority.
And it was clear from the case that he actually wasn't interested in even dating Faragher, it was just a way of humiliating her in the workplace.
So just as Faragher's expressed, it was not clear that was even something that Silverman had authority to do.
And finally, if this Court is worried about sending signals, think about what kind of signal it will be sending to litigants in the future if it were to affirm, simply affirm here.
In the future, whenever anyone is thinking that they may want to challenge a rule, no matter how well-settled it is in a particular circuit, they would have an incentive to, through discovery, to produce information that might be relevant to any future twist.
Justice Stephen G. Breyer: Well, is there any?
You said he went through, you weren't preceding on the -- your client, originally in district court, not preceding on the basis of the straight Seventh Circuit test.
He had the EEOC look into it; the Government itself says that we should affirm and they have EEOC lawyers on it.
And so is there any piece of information that would be relevant that you know of that you would introduce, were it sent back, say to the district court, that you have not already introduced?
Daniel R. Ortiz: Well, Your Honor, first, the Solicitor General's office does not now take the position that affirmance is proper.
Justice Stephen G. Breyer: I read what they said in the last page of their brief.
They said either affirm, that was their first thing, or send it back.
Now my question remains the same.
Daniel R. Ortiz: Yes.
Justice Stephen G. Breyer: Is there--
Daniel R. Ortiz: There is.
Justice Stephen G. Breyer: --What is it?
Daniel R. Ortiz: On page 197 of the Joint Appendix, in the deposition testimony of Ms. Vance, she says that Davis told her what to do, what not to do.
In the internal memo to the file that Justice Sotomayor pointed to, William Kimes, who had the authority--
Justice Sonia Sotomayor: I think Justice Breyer's question was what's not in the record?
Daniel R. Ortiz: --Oh, what's not -- I'm sorry, Your Honor.
Justice Sonia Sotomayor: Do you have something that's not in the record that will materially add to this discourse?
Daniel R. Ortiz: Yes, Your Honor.
In document number 62-3, which concerns the deposition testimony of another employee -- is not in the Joint Appendix, which -- which -- which is the deposition testimony of another employee named Julie Murphy.
Ms. Murphy testified that Davis, quote unquote, gave orders in the kitchen.
That's on page 24, I believe.
On page 38, she testifies that Davis was understood as a supervisor.
And on page 37, she indicates that she received particular orders from Davis to do different things, like clean a particular piece of kitchen equipment, at different times.
Chief Justice John G. Roberts: --That's all in the record in this Court.
Daniel R. Ortiz: Yes.
Chief Justice John G. Roberts: Just not in the Joint Appendix.
Daniel R. Ortiz: Just not in the Joint Appendix, Your Honor.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Justice Anthony Kennedy: Justice Alito has our opinion this morning in case 11-556, Vance versus Ball State University.
Justice Samuel Alito: This case requires us to explain what we meant into 1998 decisions concerning employer liability for workplace harassment under Title VII of the Civil Rights Act of 1964.
In those two cases, Burlington Industries versus Ellerth and Faragher versus Boca Raton, the Court held that somewhat different rules applied depending on whether the employee accused of harassment is a supervisor or simply a co-worker.
This difference comes into play in those cases in which no tangible employment action such as termination or denial of promotion took place.
In these cases, if the alleged harasser was merely a co-worker, the plaintiff must show that the employer was negligent in allowing the harassment to occur.
But if the alleged harasser was a supervisor, the employer must show that it exercised reasonable care and that the plaintiff unreasonably failed to take advantage of opportunities to prevent or stop the harassment.
While Ellerth and Faragher established a special rule for cases involving harassment by a supervisor, they did not define what they meant by the term “Supervisor” and that is the question that we answer in this case.
The lower courts have grappled with this question for some time and two competing definitions have emerged.
This case is from the Seventh Circuit and under the definition adopted by that Court and some others, a supervisor is a person who has the authority to take a tangible employment action, the term I used later -- I used earlier, to hire, fire, promote, or take some other action having economic consequences.
Under the alternative interpretation which is favored by the EEOC, supervisor status depends on a weighing of a number of factors, several of which are quite vague.
According to that alternative, a supervisor must have sufficient authority over the victim, must exercise that authority more than occasionally, and must do so with respect to more than a limited number of tasks.
All of these key terms are hard to pin down.
Petitioner in this case was employed in Ball State University's Banquet and Catering Division.
She sued Ball State alleging that a fellow employee, Davis, harassed her because of her race. She claims that Davis “gave her a hard time by doing such things as glaring at her, slamming pots and pants around her, giving her weird looks, and blocking the entrance to an elevator.”
The District Court held that Ball State was not vicariously liable because the alleged harasser, who could not take tangible employment actions against Vance, was not a supervisor.
The Seventh Circuit affirmed and we now hold that the Seventh Circuit applied the correct definition of a supervisor.
Ellerth and Faragher adapted a framework that draws a sharp line between supervisors and co-workers, and the Seventh Circuit's clear definition of a supervisor fits best within this highly structured framework.
Perhaps, the greatest advantage of this approach is that it permits harassment cases to be litigated in an orderly and understandable way, and this serves the best interest of all concerned.
Under our approach, the status of an alleged harasser will often be obvious before the litigation even begins, and it is likely to be resolved as a matter of law before trial.
This permits the parties to formulate a single coherent theory to be presented to the jury and it simplifies the task of juries which are already required to grapple with complex, instructions, and employment discrimination cases.
A jury that understands the law that it has to apply is more likely to return a fair verdict.
By contrast, the alternative definition of a supervisor is a study in ambiguity.
And as a result of this ambiguity, the status of an alleged harasser would often remain unresolved throughout the trial.
The parties would have to present their cases under two separate legal frameworks and the job of the jury would be greatly complicated.
Contrary to the dissent, the approach that we adopt will not thwart recovery for workplace harassment.
Two major points should be kept in mind: First, regardless of whether an alleged harasser is classified as a supervisor or a co-worker, a harassment victim may always recover by proving that the employer was negligent in allowing the harassment to occur.
There is nothing unusual or particularly onerous about this requirement.It is very common in the law of torts.
And the different between or the plaintiff must show in a co-worker case, as opposed to a supervisor case, should not be exaggerated.
Perhaps, the biggest difference is the party who wins if the Jury thinks that the evidence favoring the plaintiff and the evidence favoring the defense are exactly equal.
In all other cases where the evidence taps -- tips even slightly in one direction or the other, the allocation of the burden of persuasion makes no difference.
Second, the rule that we adopt today is neither new, nor untested.
The dissenting opinion recounts the allegations or evidence of harassment in a number of shocking cases and intimates that our holding would thwart recovery in such cases, but that charges is unfounded.
The rule that we adopt has been the law for some time in the First, Seventh, and Eight Circuits which together cover Fourteen Jurisdictions: Massachusetts, New Hampshire, Maine, Rhode Island, Illinois, Puerto Rico, Indiana, Wisconsin, Minnesota, and North and South Dakota and Nebraska, Arkansas and Iowa.
We are aware of no evidence that this rule has left harassment victims unprotected in say, Boston or Chicago or Minneapolis.
For these reasons, the decision of the Seventh Circuit is affirmed.
Justice Thomas has filed a concurring opinion.
Justice Ginsburg has filed a dissenting opinion in which Justice Breyer, Justice Sotomayor, and Justice Kagan have joined.