Vance v. Ball State University, decided by the Supreme Court this week, concerns an employer's liability, under federal civil rights law, for sexual or racial harassment of one employee by another. If the harasser is just a co-worker of the victim, the employer is liable only if the employer's own negligence contributed to the harassment. But if a harasser is a supervisor, the employer may be liable even if it has done nothing negligent. Yet what is a "supervisory" employee?
The majority opinion in Vance, which is by Justice Samuel Alito, answers that to count as the act of a supervisor, harassment has to culminate "in a tangible employment action" - that is, "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." Earlier decisions had left open the door to a broader employer liability. Vance closes it.
Justice Ruth Bader Ginsburg's dissenting opinion advocates unsuccessfully a broader definition of a "supervisor": one who "must wield authority of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment." That is, his authority must increase his ability or propensity to harass another employee.
The main reason given in the majority opinion for the narrower definition is that the broader one, embraced by the dissenters, is vague. Actually both definitions are vague. Is either helpful? I think not.
The dissent referenced a case I wrote the opinion for. Doe v. Oberweis Dairy was decided in 2006, and the dissent quotes from it: "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." I didn't think it necessary to choose between those options.
The plaintiff in was a 16-year-old high school student who worked as a part-time scooper at the defendant's ice cream parlor. Her suit alleged that Nayman, her 25-year-old shift supervisor, had harassed her sexually, culminating in having sex with her, for which he was prosecuted, convicted, and imprisoned because she was below the age of consent. Most of the employees of the ice cream parlor were teenage girls, and Nayman regularly hit on them. He would, as one witness explained, "grope," "kiss," and "grab butts" in the store. He invited the girls to his apartment, and had sex there with two of them in addition to the plaintiff.
My opinion for the three-judge panel states, "if forced to choose between the two pigeonholes, we would be inclined to call Nayman a supervisor ... because he was often the only supervisory employee present in the ice cream parlor. He was thus in charge, and had he told his boss that one of the scooper girls was not doing a good job and should be fired, the boss would probably have taken his word for it rather than conduct an investigation, since [the plaintiff], a part-time teenage worker, would hardly have been considered a valued employee." But, we added, "there is no compelling need to make a dichotomous choice. ... Binary distinctions are not the only ones that judges and juries are capable of making."
The important thing was to impose on an employer "a higher duty of care to protect its employees against those employees whom the employer has armed with authority, even if it is less than the authority that triggers the employer's strict liability. ... The fact that Nayman was often the only supervisor in the ice cream parlor and that the workers he was supervising were for the most part inexperienced teenagers working part time created a risk of harassment by him that required his employer to take greater care than if Nayman had been one of the teenage scoopers." And so we reversed the grant of summary judgment for the employer; the plaintiff had enough evidence to entitle her to a trial. (She later settled with her employer.)
Our opinion suggested a sliding scale (now superseded by Vance), where an employer's liability would depend on the contextually significant practical authority that the employer conferred on the employee who harassed another employee. Although Justice Alito in Vance goes on at length about the danger of a jury becoming confused by a vague standard, in fact this is the kind of case that a jury would have little difficulty deciding sensibly, because it involves a situation well within the capacity of virtually any adult to understand. A jury might, however, be confused by having to decide when a supervisor is not a supervisor.
The dueling opinions in Vance confirm my view that the Supreme Court's opinions are too long. Their authors spend a great deal of time trying to squeeze juice out of previous opinions that deal with substantially different employment situations. Vance, unlike the plaintiff in Doe v. Oberweis Dairy, had a weak case, as acknowledged by the dissent. This made the case a poor vehicle for an attempt to determine the scope of a company's liability for harassment by its supervisory employees.
Richard A. Posner is a judge on the 7th U.S. Circuit of Appeals and a senior lecturer at the University of Chicago Law School. He wrote this for Slate.