Friday, March 28, 2014
The Supreme Court's decision in Vance v. Ball State is typically viewed as an unalloyed victory for employers, and it certainly means that many more harassment cases under the federal antidiscrimination cases will have to be litigated as direct liability/negligence claims rather than absolute or presumptive liability. That necessarily follows from the Court's narrow definition of "supervisor" to reach only those who can take "tangible employment actions," such as hiring, firing, demoting, promoting, transferring, or disciplining subordinates. It is only such individuals who will trigger automatic employer liability (when they in fact do take such a tangible employment action) or presumptive liability subject to an affirmative defense (when they don't). All other harassment will be assessed under a negligence standpoint.
Is it possible that Vance went further to also negate what many viewed as at least a partial employee victory in Staub v. Proctor Hospital, a 2010 decision in which "supervisors" also featured prominently?
In Staub, two lower level managers -- whom the Court labeled as "supervisors" -- made reports which the jury found to have influenced the actual decisionmaker, one Buck, to fire Staub. The lower level "supervisors" had the motivation to discriminate against plaintiff (in that case, under USERRA) but no power to fire. Buck had the power to fire Staub but no discriminatory motivation. Adopting its version of the "cat's paw" theory, the Court found that the employer could be liable in such circumstances.
Rewind to Vance and the problem immediately presents itself: under the Vance analysis, Buck was the supervisor, and the other two low level supervisors apparently weren't -- after all, they couldn't cause an adverse employment action unless they influenced the actual decisionmaker. So if harassment were the claim, only Buck could trigger automatic or presumptive liability.
That's not per se inconsistent with Staub but the Staub majority went out of its way to make clear that the cat's paw theory it adopted applied only when "supervisors" influenced the decisionmaker.
Needless to say, the employer would be liable only when the supervisor acts within the scope of his employment, or when the supervisor acts outside the scope of his employment and liability would be imputed to the employer under traditional agency principles. We express no view as to whether the employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.
But Vance seems to mean that Staub was dealing with the null set: those who can't make an independent decision on hiring, firing, etc. are not supervisors and therefore there isn't anybody who can use the decisionmaker as a cat's paw. So Vance negates Staub, despite the fact that Scalia who wrote Staub was part of the majority in Vance.
There are various ways out of this conundrum. The most obvious is that there are two different definitions of "supervisor" for purposes of the two claims, although why that should be is beyond me.
Another possibility is that the Staub implicitly resolved the question the Court explicitly reserved: co-workers (the managers who were not Vance-style supervisors) can satisfy the cat's paw theory if they have the requisite motivation and proximately cause the adverse decision.
Yet another possibility looks to a passage in Vance that may be read to create a class of de facto supervisors:
[E]ven 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. . . . 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.
Maybe, but Scalia in Staub did not buy the delegation theory Alito suggested in concurring as the basis for subordiate bias liability under the antidiscrimination statutes.
It's true that the Tenth Circuit read the Vance delegation language to elevate to "supervisor" status those who have the power to recommend a tangible employment action: "Importantly, however, the Court explained that an employee need not be empowered to take such tangible employment actions directly to qualify as a supervisor. A manager who works closely with his or her subordinates and who has the power to recommend or otherwise substantially influence tangible employment actions, and who can thus indirectly effectuate them, also qualifies as a 'supervisor' under Title VII." Kramer v. Wasatch County Sheriff's Office (10th Cir. Feb. 25, 2014).
But wait, that may or may not be true, but it doesn't appear that the lower level managers in Staub were supervisors-by-delegation. Certainly, the majority opinion doesn't treat them that way. Further, while this might square Vance with Staub in a few cases, any broad application would effectively destroy the "easily workable" rule that the Vance Court was so intent on providing.
A final possibility might be that an individual is a supervisor under Vance because he or she has the power to take some tangible employment actions (like discipline), which would allow him to influence the decisionmaker under Staub to take a more severe action (such as discharge). There might be some basis for drawing that conclusion from the facts in Staub, but the opinion itself doesn't focus on it.
The Sixth Circuit noted, but did not resolve, the question of the relationship between the two cases in Shazor v. Prof'l Transit Mgmt., (6th Cir. Feb. 19, 2014).
A hat tip to student Justine Abrams for alerting me to Shazor and to my colleagues Ed Hartnett and Tim Glynn for sharing thoughts on the question.