A Most Unfortunate Session of the U.S. Supreme Court III

3.  The decision in Vance v. Ball State University (No. 11-556, October Term 2012) will further constrain the ability of workers, in hostile workplace environments, to utilize the Civil Rights Act of 1964, Title VII, to redress grievances through the Equal Employment Opportunity Commission (EEOC) and the federal courts. 

This conclusion should be straightforward and, for a broad set of reasons, I find the case among the least problematic constitutionally in this session even if objectionable in terms of its consequences.  Approaching a case like this one, in part, through my base of experience as a labor historian, it represents yet another chapter in the long march of labor law away from organizational privileges (i.e. the National Labor Relations Act regime of collective bargaining as the principal bulwark of employee protections against managerial practices in the workplace) and toward a “civil rights”-based regime focusing on punishment of arbitrary actions by employers and their agents (i.e. supervisors).  In this respect, it constitutes another step in truncating the capacity of workers to utilize Title VII to address hostile workplaces by holding employers liable for maintaining a workplace free of targeted forms of racial, ethnic, or sexual harassment.

            Summarizing the circumstances of this case, the plaintiff is an African-American woman who endured a racially hostile environment characterized by her treatment from a white co-worker who apparently exercised some supervisory duties over the plaintiff.  The plaintiff sued her employer, Ball State University, claiming that the employer was vicariously liable, under Title VII, for negligently enabling her supervisor to exercise racial harassment.  The employer argued, in its defense, that the plaintiff’s co-worker was not, within existing lines of judicial interpretation of Title VII, the plaintiff’s supervisor, and, hence, they could not be held vicariously liable for her actions in creating a hostile environment.  This line of defense by the employer apparently sustained a dismissal of the plaintiff’s claims at the district court level and in the 7^th Circuit Court of Appeals.  The Roberts’ Court’s granting of Certiorari in the case sought to address this question directly because there is apparently some amount of disagreement among Circuit Court jurisdictions concerning the definition of supervisors relative to Title VII jurisprudence.  Justice Alito’s majority opinion effectively limited the definition of supervisors, in relation to Title VII, to individuals capable of exercising “tangible employment actions” (e.g. “hire, fire, demote, promote, transfer, or discipline”) of fellow employees, on the behalf and acting in the capacity of the employer as the employer’s agent. 

Thus, as Justice Ginsburg argues in her dissenting opinion, the decision of the Court effectively eliminates Title VII as an avenue of recourse for workers to seek redress for hostile work environments caused by co-workers engaged in direction of an “employee’s daily work activities” (cited by Ginsburg as part of a definition of supervisors from an EEOC publication, “Guidance on Vicarious Employer Liability For Unlawful Harassment by Supervisors,” 8 BNA FEP Manual 405:7651 (Feb 2003)) but otherwise incapable of exercising tangible employment actions.  By foreclosing the possibility that an employer will be found vicariously liable for the actions of such workers involved in direction of daily work activities of other workers, Ginsburg additionally notes that the decision will reduce the incentive for employers to engage in training of casual supervisory employees to prevent behaviors that might be construed as harassment under the definition of Title VII.  As such, it is likely to contribute to the development of hostile work environments in which employees lack any recourse other than those established by employers to redress grievances arising from the actions of non-supervisory (i.e. employees without the authority to exercise “tangible employment actions”) co-workers.

This decision is obviously susceptible to a range of interpretations.  My own interpretation, invariably, examines what has been done in this case against a long history in which workers in the U.S. have attempted to address workplace conditions through organization and collective bargaining, through the intervention of state agencies and direct regulatory enforcement actions and/or litigation against employers, or through some combination of these divergent approaches.  This history can be traced back through mass strikes for trade union recognition, contestation of compensatory practices regarding piecework, reduction of labor hours without comparable reductions in pay, and unemployment compensation.  Until the passage of such federal legislative statutes as the Norris-LaGuardia (1932) exemption of organized labor from anti-trust injunctions and, subsequently, the National Labor Relations Act (NLRA)(1935), efforts by workers to address issues in compensation and working conditions were a preeminently private affair, waged as industrial conflict between labor and management.  Since the passage of NLRA, the status of labor in the U.S. has become a preeminently public matter, subject to a complex and changing array of statutory provisions and judicially constructed standards. 

Over the course of this evolution in the construction and transformation of labor law, the status of employees designated as supervisors has been, and remains, contentious.  Within the NLRA regime, as amended by the Labor Management Relations Act of 1947 (i.e. the Taft-Hartley Act), Congress designated a specific set of conditions defining supervisory workers for the purposes of NLRA and, thenceforth, prohibited such workers from engaging in collective bargaining under the provisions of NLRA.  In recent years, the federal judiciary has acted to expand the range of occupational positions restricted from participating in labor organizing efforts across broad ranges of service professions constituting growth industries in the U.S.  Most notably, a line of interpretation on occupational positions in health care, established by the Supreme Court’s decision in NLRB v. Kentucky River Community Care, Inc. (532 U.S. 706 (2001)), has expanded the definition of supervisory personnel to include employees who exercise “independent judgment” in the direction of other employees “in the interest of employer”, whether or not the former actually maintain the capacity to exercise “tangible employment actions” in relation to the latter.  Thus, as Justice Stevens offers in his dissent, the Court in Kentucky River attached no deference to NLRB in differentiating between “a nurse’s judgment that an employee should be reassigned or disciplined than to a nurse’s judgment that an employee should take a patient’s temperature, even if nurses routinely instruct others to take a patient’s temperature but do not ordinarily reassign or discipline employees” (532 U.S., at 727).

An evident difference exists between NLRA jurisprudence and litigation over employer liability for hostile working environments under Title VII.  Most emphatically, in passing the Labor Management Relations Act, Congress went out of its way to define what exactly should be construed in the term “supervisor” for purposes of excluding such personnel from protection under the NLRA structure.  The inclusion of personnel exercising independent judgment is expressly derived from the statutory content of the act and, as such, both NLRB and the federal judiciary are bound to respect the will of Congress in defining what a “supervisor” means.  This is not to say that the statutory provisions are unambiguously clear or not subject to interpretation.  Rather, it simply means that Congress provided some measure of guidance on the question.  On the contrary, Congress provided no guidance whatsoever in defining supervisors for purposes of assigning vicarious liability of employers in relation to Title VII.  EEOC and the federal judiciary have, thus, been conveyed full liberty to define who is in and who is out with regard to the suits over the liability of employers for hostile workplaces. 

Nonetheless, the plaintiff in Vance argued, precisely, that the expanded definition of supervisory personnel applicable in the recent line of NLRA jurisprudence should, likewise, be applied in a determination of liability under Title VII.  Justice Alito notes this argument in the majority opinion and, properly, dismisses it.  Title VII is not NLRA, and there is no reason to apply NLRA’s statutory definition of supervisors to litigation arising from an unrelated statutory enactment where Congress did not see fit to say precisely what a supervisor was. 

Having said this, the contemporary divergence in the legal definitions of supervisory personnel between NLRA and Title VII is evocative of a broader offensive by employers against labor on two distinct fronts, both supported by the decisions of conservative, anti-labor federal jurists.  Not only can employees not count on the assistance of the NLRA regime to press demands for better compensation and working conditions through collective bargaining, but they can also no longer count on the assistance of EEOC to combat hostile working environments through litigation against employers.  In the former case, the definition of supervisors is being expanded to lock workers out of collective bargaining rights.  In the latter, it is being contracted to insulate employers from liability for the actions of employees. 

Under these circumstances, it is worth the comment, perennially advanced by labor supporters on the political far left, that organized labor in the U.S. should never have allowed its freedom of action in work actions against management to be co-opted by federal legislation.  Perhaps the construction of the NLRA regime was inevitable and, on the whole, contributed favorably to working conditions and living standards for American workers, but it also indisputably transformed American labor into a subject of Congressional statutory restrictions and federal judicial pronouncements that have contributed, in part, to the dismal status of organized labor, particularly in the private sector, at this stage in history.  Moreover, if Title VII has aided a wide range of previously discriminated groups to enjoy more fair compensation and better working conditions, despite the best efforts of organized labor (in many circumstances) to impede these groups from achieving their objectives (!), it must, likewise, be understood that decisions like Vance will sap the vitality of Title VII, transforming it into a useless provision prohibiting sets of circumstances that no longer describe or address the sources of hostile working environments.