State of Texas v. EEOC et al

Filing 25

RESPONSE filed by State of Texas re: 15 MOTION to Dismiss (Attachments: # 1 Exhibit(s) Vance v. Ball State, # 2 Exhibit(s) UT v. Nassar) (Mitchell, Jonathan)

EXHIBIT A

ww¡/,.uPremecourtprevlewof!

No. 11-556

llntþ Supremt @ourt of tút @niteù þtutts
M¡¡rra

Ve¡lco, PETITIoNER
a.

BA-l,t,

St¡to

UNIvonsITY, ETAL.

ONWRIT OF CERTIORARI
TO THE UNITED STATES COUNT OF APPEALS
FONTHE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE IN SUPPORT OF NEITHER PARTY

DoNelp B. VnRnIllt, Jn.
Solicitor General
Counsel of Record,
THoMAS E. Pnnnz
P.

Drvro Lopnz

General Counsel
CRnolvN L. Wupnlnn
Actin g A s s o ci a,te G en erq,l
Counsel

Deurnl

T.

Vatl

Acting As sistant

G

enerøl

Counsel

Julrn L. Gexrz
Attorney

ssion
507

As sistant Attorney G enerøl
SnI SnrNweslu
D eputy S olicitor G eneral

ANt'¡

O'CoNunll

Assistont to the Solicitor
General
DsNurs J, Drusov
Apnrl J. A¡¡onnsoN
Attornegs
Denartment of Justice
W å,shinstoa b. C. go s e o -ooo I
uprem eC tB riefs
(202) 51t+-2217

S

@ us

doj. g oa

QUESTION PRESENTED

Whether an employee must have the po\Mer to carry
out a tangible employment action, such as hiring, firing,
promoting, demoting, transferring, or disciplining an
employee, in order to qualify as a supervisor for purposes of vicarious employer liability under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.

(r)

TABLE OF COI.{TENTS
Page

Interest of the United States

1

.8
Summary of argument..
An employee who directs another employee's daily work
activities but cannot take tangible emplo¡rment actions
is a supervisor for purposes of vicarious liabiliff under
Title VII:
A. Title VII imposes vicarious liability on employers
for harassment by an employee with authority to
direct the victim's daily work activities.................... 11
1. Imposing vicarious liability for harassment
by an employee with authority to direct the
victim's daily work activities is consistent
11
with agency principles
2. Imposing vicarious liability for harassment
by an employee with authority to direct the
victim's daily work activities is consistent
with the objectives of Title VII............ .,........,...22
B. The EEOC's longstanding interpretation is
reasonable and entitled to deference ................. .....,, 26
C. On the existing record in this case, Davis fails
30
to qualify as petitioner's supervisor
........33
Conclusion

TABLE OF AUTHORITIES
Cases:

Alb emarle

P ap

er

Allison Engine

C

Co.

o. v . M

oo

d,g, 422 U .S. 405

B urlington I nd,u s., I nc.

v.E

......................32

llerth,

524 U .5. 7 42

..........,,......passim

Burlington N. & Santa Fe Rg.
53

975)..,.... 23, 25

v, United, States en rel. Sønd,ers,

553 U.S.662 (2008)..

(19e8)

(1

(2006)

Co.

v.Whitø, 548 U.S.
......... 16,

(rrr)

2r,22

ry

Cases-Continued:

Page

Dulanegv. Packaging Corp.of Am.,673 F.3d 323
(4th Cir. 20LZ)..........
......................28
EEOCv. CRST Van Eæped,itedn 1nc.,679 F.3d 657
(8th Cir. 2012)..........
20,2I,28
F aragher v. City of Bocø Røton, 524 U.S. 77 5

(1998)

..................p a'ssim

Fed,eral Eæpress Corp. v. Holowecki,552 U.S. 389

(2008)

......28
F.3d 345 (Zth Ctu.2002).....,6,29
Hatlv. Bod;i,ne Elec. Co.,276
Kasten v. S aint-Gobuin P erþrmsnce Plastics C orp.,
...........28
131S. Ct.L325 (2011).........
Mack,v. Otis Eleuator Co.,326 F.3d 116 (2d. Cir.),
18,28
cert. denied, 540 U.S. 1016 (2003)

Martinv. Occupationa'l Safety & Hea'lth Reuiew
Cornrn'n,499 U.S. 144 (1991)
Merclc KGaA,v. Integra Lifesciences I, Ltd.,545 U.S.
193

(2005)

Meritor

Saa. Ba,nk,.FSB v. Vi'nson,477

27

...................32

U.5.57
L,2,26

(1e86)

Milcetsv.Ci,ty of Durham, 183 F.3d 323(4lhOir. 1999).......32
Oncalev. Sund,oumer Offshore Servs., [nc.,523 U.S. 75
L,2,22
Pq,rki,ns v. Ciail Constructors of lllinois, Inc., 163 F.3d
29
1027 (7th Cir. 1998)
Pennsyluania State Policev. Sud,ers,64z U.S. 129

(1993)

(2004)

L5,23

Illinois Dep't of Transp.,35g F.3d 498
(Zth Cir.
........ 6, 7,19,29
2t
Slûd,morev. Swifi Co.,323 U.S. 134 (1944)...
SprintlUnited, Mgmt. Co.v. Mendelsohn, SS2 U.S. 379

Rhod,esv.

(2008)

2004)..........

32

V
Cases-Continued:

Page

Støubv. Proctor Hosp., 131 S. Ct. 1186 (2011)
Sud,ersv. Easton,3z5 F.3d 4¡ì2 (3d Cir. 2003)
Telløbs, Inc. v. Malw Issues & Rights, Ltd.,55LU,S
308 (2007)

25
15
32

Wegers v. Lear Operøtions Corp.,359 F.3d 1049
(8th Cir.2004)
19,20,28
(4th Cir.2010)...... L7,28
Whittenv. Fred;s, Inc.,60I F.3d 231

Statutes:

Civil Rights Act of 1964, Tit. YII,42 U.S.C. 2000e
et

seq.

..................passim

2000e(b)
42 U.S.C. 2000e-2(a).
42 U.S.C.

42 U.S.C.2000e-5(Ð(1)
42 U.S.C. 2000e-16 (2006 & Supp.

..................8, 11

*..I,2,t6,21
1

IV 2010).......................1

Uniforme d Services E mplo¡rment and Reemplo¡rment
Rights Act of 1994,38 U.S.C. 4301et seq. ...............,,........25
Miscellaneous:

Guidance on Vicarious E mploy er Lia,bility for Unlawful Hurassment by Supemisors,8 FEP Manual (BNA) 405:7654 (1999),
available at 1999 \ryL æ305874............... .. L3,26

E E OC, E nforcement

Susan Estrich,
(1ee1)

Seæ

atWork,43 Stan. L. Rev. 813

t4

Prossar and, Keøton on the Law of Torts (W. Page
..,25,26
Keeton ed.,5th ed. 1984)....
1 Restatement (Second) of Agency $ 219(2Xd) (1957) .......... Lz
1 Restatement (Third) of Agency $ 1.02 (2006)...................,..21

lln tW åupremt @outt of

tÍ)e

@nÍtù 9¡tutts

No. 11-556

Ma¡mn VaNCE, PETITIoNER
a,

BALL Srerp UNvgnslrY, ETA-L.

ONWRIT OF CENTIONARI
TO THE UNITED STATES COURT OF APPEALS
FORTHD SEVENTH CINCUIT

BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE IN SUPPORT OF NEITHER PARTY

INTEREST OF THE UNITED STATES

Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e et seq.,prohibits discrimination in employment on
various bases. 42 U.S.C. 2000e-2(a). Actionable discrim-

ination includes harassment that creates a hostile working environment. See, e.g., Meritor Sau. Banlc,.FSB v.
Vinson,47? U.S. 57,66 (1986); OncøIev. Sund,owner Offshore Serus., lnc.,523 U.S. 75, 78 (1998). The Attorney
General is responsible for enforcing Title VII against
public employers, and the Equal Employment Opportunity Commission (EEOC) enforces Title VII against
private employers. 42 U.S.C.2000e-5(f)(1). In addition,
Title VII applies to the United States in its capacity as
the nation's largest employer. 42 U.S.C.2000e-16 (2006
& Supp. IV 2010). The United States thus has a strong
interest in the proper interpretation of Title VII. At the
(1)

2

Court's invitation, the United States filed a brief as amicus curiae at the petition stage of this case.
STATEMETTT

1. Title VII prohibits employment discrimination on
the basis of race, color, religion, sex, or national origin.
42 U.S.C. 2000e-2(a). Employers may be liable for harassment on those bases that creates a hostile working
environment. See, ø.g., Meritor Søu. Ba,nk, FSB v.
Vinson,417 U.S. 57,66 (1986); Oncalev. Sundowner Offshore Serus., lnc.,523 U.S.75,78 (1998).
The standard for determining an employer's liability
for harassment turns on the harasser's status in the
workplace. An employer is vicariously liable for a supervisor's h arassme nt. F ørag her v. City of B o ca R øton,
524 U.S. 776, 807 (1998); Burlington Ind,us., Inc. v.
Ellerth,524 U.S. 742,764-765 (1998). If the supervisor
took no tangible emplo¡rment action against the victim,
however, the employer may assert as an affirmative defense that it exercised reasonable care to prevent and
correct harassment and that the victim unreasonably
failed to take advantage of the corrective and preventive
opportunities. Farøgher,524 U.S. at 789, 807; Ellerth,
524 U.S. at760,764-766; see i"d,. at76l (defining "tangible employment action" to include "a significant change
of employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing a significant change
'When
the harasser is a co-worker rather
in benefits").
than a supervisor, the employer is liable if the victim
proves that the employer was negligent because it
"kne\M or should have known about the conduct" but
failed to take appropriate action. Ellerth,524 U.S. at
759,765; see also Faragher, 524 U.S. at799.

3

The Court has stated that the rule of vicarious liability for a supervisor's harassment applies to a "supervisor with immediate (or successively higher) authority."
Fa,røglter, 524 U.S. at 807; Ellerth 524 U.S. at 765. The
Court has not, however, specifically defined which employees qualify as supervisors for purposes of that rule.
2. Petitioner Maetta Vance, who is African-American,
began working for respondent Ball State University in
1989 as a substitute server in the Banquet and Catering
Division of University Dining Services. She became a
part-time catering assistant in 1991. Pet. App. 2a,27a.
Petitioner was involved in several confrontations at
work, including racially-charged incidents. I d. at La-Za.
Most relevant here are her altercations with Saundra
Davis, a catering specialist who is white. Id,. at 54a.
a. Sometime before 2002, petitioner and Davis argued, and Davis slapped petitioner on the head. Pet.
App. 3a, 18a,30a n,5. Petitioner told her employer about
the incident but did not pursue the matter. Id,. at 3a.
Davis rüas soon transferred to another department. Id.
atBa,30a n.5.
The conflicts resumed when Davis returned to the
Banquet and Catering Division in 2005. Pet. App. 3a.
On September 23,2005, Davis blocked petitioner from

exiting an elevator and said, "I'11 do

it again"-

apparently referring to the slapping incident. Id. atïa,
l&a,29a-30a. Petitioner filed an internal complaint describing the incident. Id,. at 3a-4a. Around the same
time, petitioner overheard Davis using the terms "Sambo" and "Buckwheat" while looking at her, but she apparently did not report those comments. Id. at6a,59a61a. Petitioner told her supervisors that she was "not
comfortable with Saundra Davis leaving her notes and
delegating jobs to her in the kitchen." 1:06-cv-01452

4

Docket entry No. (Docket entry No.) 59-16, at 2 (S.D.
Ind. Nov. 1,2007); J.4.66-67.
In May 2006, petitioner filed another internal complaint alleging that Davis blocked her way at the elevator, that she was left alone with Davis in the kitchen, and
that Davis gave her "weird" looks. Pet. App. 6a-7a,37a
n.8. In response to petitioner's complaints, managers
attempted to separate her from Davis. Id,. at 36a; J.A.
367.

b. During this period, petitioner

also had difficulties
with others in the department, some of which \Mere racially charged. In September 2005, someone told peti-

tioner that co-worker Connie McVicker had bragged
about her family ties to the Ku Klux Klan and had called
petitioner a "nigger." Pet. App. 3a, 3la-32a. Petitioner
reported the incident, and Bill Kimes, general manager
of the Banquet and Catering Division, gave McVicker a
written warning, which was atypical for a first offense.
Id. at 4a-5a,33a n.6, 34a-35a. A few days later, another
supervisor met with McVicker and suggested she consider a transfer. Id. at 35a. Petitioner also reported
that McVicker had called her a "monkey." Id. at 5a,35a.
In December 2005, petitioner filed a complaint with the
EEOC alleging, inter a,lia, race discrimination. Id. at
6a,36a.
In 2006, petitioner alleged that Karen Adkins, an assistant personnel director, was "mean mugging" and following petitioner at work. Pet. App. 7a,37a n.8. Petitioner also filed an internal retaliation complaint against
Kimes. Id. at 7a, 40a. Respondent investigated the
complaints but found no basis for disciplinary action.
Id. at37a n.8, 40a-41a. In August 2006,petitioner filed a
second complaint with the EEOC, claiming that respondent had retaliated against her by diminishing her

5

duties, withholding her breaks, denying her overtime,
and disciplining her unei¡ually. Id,. at7a,40a.
c. Petitioner filed this suit in October 2006, alleging
that she was subjected to a hostile work environment
and was retaliated against for complaining about discrimination, in violation of Title VII. Pet. App. 7a,52a.
In January 2007, respondent promoted petitioner to a
full-time catering assistant. Pet. App. 27a,4Ia. Petitioner claimed that Davis and others continued to harass
her. According to petitioner's complaints, she was consigned to "entry level duties" such as cutting up celery
sticks. Id,. at 43a,7|a. Petitioner further alleged that in
August 2007, Davis encountered petitioner at an elevator and said, 'Are you scared?" in a southern accent. Id.
at 38a. Petitioner reported the incident, and Davis received a verbal warning. Ibid. Also that month, petitioner filed a grievance about an incident in which
McVicker said "payback" as petitioner passed her at the
elevator. Id. at 37a, 63a. Soon afterwards, McVicker
transferred to anotherjob. Id. at36a.
d. On petitioner's various complaint forms, she listed
Davis as a "supervisor." J.A. 28-29, 45; Docket entry
No. 60-12, at 1. But when asked in a deposition if Davis
was her supervisor, petitioner said, "[O]ne day she's a
supervisor; one day she's not. * * * It's inconsistent."
Pet. App. 54a. Petitioner believed Davis was "part of
management because she doesn't clock in." Ibid'. Another employee said he r'vas unsure of Davis's status, but
claimed that Kimes told him Davis r'vas a supervisor.
J.A. 385-387. Kimes said Davis's status was "complicated" and explained that Davis did "direct and lead" at
times. J.A. 366-367. Davis's job description states that
she supervises "lk]itchen Ia]ssistants and ls]ubstitutes,"
and exercises "leadership of up to 20 part-time, substi-

6

tute, and student employees." J.A. 12. But Kimes also
testified that he "cfould]n't have [Davis] directing lpetitionerl" because of problems between them and that he
tried to separate them after petitioner complained. J.A.
367. Generally, Kimes or the kitchen chef assigned petitioner's day-to-day tasks. Pet. App. 27a,4la-42a.
3. The district court granted summary judgment in
favor of respondent. Pet. App. 25a-80a.
a. The court concluded that Davis was not petitioner's supervisor and that respondent therefore was not
vicariously liable for Davis's conduct. Pet. App. 53a-55a.
The court applied Seventh Circuit precedent holding
that "[a] supervisor is someonewith the power to directly affect the terms and conditions of the plaintiff 's emplo¡rment," id,. at 53a (citing Rhod,esv. I\Linoi's Dep't of
Transp.,35g EBd 498,506 (?th Cir. 2004)),which authority "primarily consists of the po\Mer to hire, fire, demote,
promote, transfer, or discipline an employee," ibi'd.
(quoting HaIIv. Bod,i,ne Elec. Co.,276 EBd 345, 355 (7th
Cir. 2002)). Accordingly, the court ruled, even assuming
"Davis periodically had authority to direct the work of
other employees, such power \Mould still not be sufficient
to establish a supervisory relationship for purposes of
Title VII." Id,. at 54a. The court noted that it was "well
established under Seventh Circuit law that '[a]n employee merely having authority to oversee aspects of another employee's job performance does not qualify as a
supervisor."' Ibid,. (quoting Rhod,øs, 359 EBd at 506).
The court found "nothing in the record indicating that
Ms. Davis had the ability to hire, fire, demote, promote,
transfer, or discipline fpetitioner]." Ibid,. (internal quotation marks omitted).
b. The court evaluated petitioner's mistreatment by
Davis and McVicker under the standard for harassment

7

by co-workers. Pet. App. 59a-68a. The court determined that most of petitioner's confrontations with Davis had "no racial character or purpose," and that any
racial remarks were "not sufficiently severe or pervasive" to support a hostile work environment claim. Id.
at59a-60a. The court concluded that McVicker's racial
statements did not "rise to the level of actionable harassment." Id. at 61a-63a.
The court further concluded that, even if petitioner
had suffered severe or pervasive racial harassment by
Davis and McVicker, she could not demonstrate a basis
for employer liability. Petitioner could not establish that
respondent was negligent because respondent had addressed petitioner's complaints in a way "reasonably
calculated to foreclose subsequent harassment." Pet.
App.60a-61a, 63a-66a.
c. The court also rejected petitioner's claims against
other employees and her claim of unlawful retaliation.
Pet. App, 55a-59a, 68a-80a.
4. The court of appeals affirmed. Pet. App. La-24a.
The court agreed with the district court that Davis was
not petitioner's supervisor because Davis lacked the
"power to directly affect the terms and conditions of [petitioner'sl employment" by hiring, firing, demoting,
promoting, transferring, or disciplining her. Id. at lZa
(quoting Rhod"es,359 n3d at 506) (emphasis omitted).
The court observed that it "ha[d] not joined other circuits in holding that the authority to direct an employee's daily activities establishes supervisory status under
Title VII." Id,. atLZa-LBa. The court thus held that petitioner's assertion "lhat Davis had the authority to tell
her what to do" failed to raise a triable issue concerning
supervisory status. Id,. atLBa.

8

Applying the standard for co-worker harassment, the
court assumed that McVicker and Davis had created a
hostile work environment. Pet. App. 15a. The court
concluded, however, that respondent was not negligent
because it "promptly investigatled] each of fpetitioner's]
complaints and tlook] disciplinary action when appropriate." Ibid.; see id,. at 15a-19a. The court also upheld
the district court's rejection of petitioner's remaining
claims. Id,. at LBa-L a, L9a-24a.
SUMMARY OF ARGUMENT

A. 1. Title VII imposes liability on employers for the
acts of their "agent[s]." 42 U.S.C. 2000e(b). In Farø'
gher v. Ci.ty of Boca Raton,524 U.S. 775 (1998) , and BurIington Industries, Inc. v. Ellerth,524 U.S. 742 (1998),
the Court explained that, under agency principles, an
ernployer can be vicariously liable for harassment by an
employee who is a supervisor. That is because a victim
of harassment may be reluctant to accept the risks of
confronting a harasser who has supervisory authority,
and the agency relationship between the employer and
the supervisor thus aids the harasser in accomplishing
the harassment.
The court of appeals held that a "supervisor" for
purposes of. Førøgher and Ellerth is confined to persons
who have por,¡¡er to take tangible employment actions
against the victim, and does not encompass persons who
control the victim's day-to-day work activities. That understanding is unduly restrictive. This Court held in
Førøglter that "[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile
work environment created by a supervisorwith immediate (or successively higher) authority over the employee." 524 U.S. at 807. An employee who controls work
assignments certainly may possess "immediate" and

I
substantial authority over the victim, notwithstanding a
lack of po\Mer to take tangible employment actions. Indeed, in Fa,røglteritself., the Court concluded that a lifeguard captain who made daily work assignments was a
supervisor for purposes of Title VII even though he
lacked authority to take tangible employment actions.
Under agency principles as applied inFaragher and
Ellerth, vicarious liability under Title VII extends to
harassment by employees with authority to direct the
daily work activities of their victims. An employee's reluctance to accept the risks of confronting a superior is
not limited to situations in which the harasser has pov¡er
to take tangible employment actions. It may be equally
difficult for the victim to confront a harassing supervisor with authority to direct daily work activities, including the authority to assign particularly undesirable
tasks. That was the case in Faraghe1 for instance,
where the lifeguard captain threatened the victim that if
she did not date him, he would have her "clean the toilets for a year." 529 U.S. at 780. When an employer
vests an employee with authority to direct daily work
assignments, the harassment is facilitated by the agency
relationship and vicarious liability is warranted.
2. Title VII's purpose to avoid harm and to encourage the creation of anti-harassment policies and effective grievance mechanisms further supports the conclusion that Title VII imposes vicarious liability on an employer for harassment by an employee with authority to
control the victim's daily work activities. The affirmative defense provided in Fa,røgLter and Ellerth-which
allows an employer to avoid liability for supervisor harassment by showing that it exercised reasonable care to
prevent and correct harassment and that the plaintiff
unreasonably failed to take advantage of those preven-

10

tative and corrective opportunities-encourages employers to screen supervisors, monitor them, and establish effective training and complaint programs. If employers faced vicarious liability only for the actions of
those supervisors with po\Mer to take tangible employment actions, employers would have diminished incentives to train and monitor intermediate supervisors.
And employees subject to harassment by those with control over day-to-day assignments would have a diminished ability to make use of employer grievance procedures,
Title VII also ensures that victims are compensated
for injuries suffered on account of unlawful employment
discrimination. Because the employer seeks to profit
through its agents, it is appropriate for the employer to
bear the costs when those agents abuse their delegated
authority to injure others.
B. The court of appeals' approach is also inconsistent
with EEOC guidance defining who is a supervisor for
purposes of vicarious liability under Title VII. The
EEOC's guidance provides that an employee is a supervisor if the employee (a) has authority to undertake or
recommend tangible employment actions, or (b) has authority to direct the victim's daily activities. The EEOC
thoroughly considered the Court's decisions inFørøgher
and Ellertb in formulating its position, the guidance has
governed the agency's enforcement actions since 1999,
and it is entitled to deference.
C. Under a correct approach that recognizes that an
individual with authority to direct daily work activities
qualifies as a supervisor, here, Davis would fail to qualify as petitioner's supervisor on the record as it currently stands. There is scant evidence in the record that
Davis exercised the requisite authority over petitioner's

11

daily work activities; and authority to direct a limited
number of tasks does not suffice. Although there is evidence that Davis had a supervisory title, a supervisory
title does not itself connote the necessary authority to
direct day-to-day work assignments.
ARGUMEI.[T
AN EMPLOYEE WHO DIRECTS ANOTHER EMPLOYEE'S
DAILY WORK ACTIVITIES BUT CANNOT TAKE TANGIBLE
EMPLOYMENT ACTIONS IS A SUPERVISOR FOR PUR.
POSES OF VICARIOUS LIABILITY UNDER TITLE VII

A.

Title VII Imposes Vicarious Liability On Employers For
Harassment By An Employee With Authority To Direct
The Victim's Daily Work Activities
1. Imposing uúcaríous liøbíIítu for ha.rassment by øn
ernplogee wíth quthoríty to dírect the victím's døily
worlc actíaítíes is consistent wíth agency príncíples

a. The term "supervisor" does not appear in Title
VII, but the statutory text imposes liability on employers for the actions of their "agent[s]." 42 U.S.C.
2000e(b) (defining "employer" to include an agent of the
employer); see also Farøgherv. Citg of Boca Raton,524
U.S. 775, 791 (1998). Thus, "[i]n express terms, Congress has directed federal courts to interpret Title VII
based on agency principles." Burlington Ind,us., Inc, v.
Ellerth,524 U.S. 742,754 (1998).
Accordingly, in Fa,ra,glter and Ellerth, two cases involving allegations of workplace sexual harassment, this
Court applied agency principles to determine the scope
of an employer's vicarious liability under Title VII. The

Court first explained that an employer is liable for
"torts committed by an employee within the scope of his
or her employmenl," Ellertll,524 U.S. at 756, but that
"sexual harassment by a supervisor" generally falls out-

t2
side the scope of employment because it is not done with
a purpose to serve the employer, id. at 756-757. The
Court concluded, however, that an employer could still

be vicariously liable for a supervisor's harassmentnotwithstanding that the supervisor is acting outside the
scope of his employment-based on a separate agency
principle supporting vicarious liability when an employee is "aided in accomplishing the tort by the existence of
the agency relation." Føra,gher, 524 U.S. at 801-802
(quoting I Restatement (Second) of Agency $ 219(2Xd),
at 48t 1t957)); see also Ellerth,524 U.S. at759-762.
The Court explained that a supervisor's harassment
of a subordinate is aided by the existence of the agency
relation because "[t]he agency relationship affords contactwith an employee subjected to a supervisor's * *
harassment, and the victim may * * * be reluctant to
accept the risks of blowing the whistle on a superior."
Føraglter, 524 U.S. at 803. Contrasting supervisor harassment from harassment by a co-worker, the Court observed: "'When a fellow employee harasses, the victim
can walk away or tell the offender where to go, but it
may be difficult to offer such responses to a supervisor."
Ibid,. The Court thus held that, under agency principles,
"[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment
created by a supervisor with immediate (or successively
higher) authority over the employee." Id. at 807. When
the harassment is committed by a co-worker rather than
a supervisor, however, the employer generally may be
liable only if negligent. See EIIerth,524U.S. at 759,765.
b. The court of appeals held that a "supervisor" for
purposes of the various liability rules set forth in
Farøgher and Ellerth is confined to persons possessing
"power to directlg affect the terms and conditions of
1r

13

lthe victim's] employment," which the court understood
"primarily consistfing] of the power to fire, hire, demote, promote, transfer, or discipline an employee."
Pet. App. t\a (citations omitted). Under that approach,
the court explained, the "the authority to direct an employee's daily activities" is insufficient to establish supervisory status. Id. at 13a. That understanding is unduly restrictive.
Nothing in Farøgher or ELLerúh suggests that supervisory status is limited to those employees who have authority to "fire, hire, demote, promote, transfer, or discipline an employee," to the exclusion of those with "authority to direct an employee's daily activities." Pet.
App. 12a-13a (citation omitted). The decisions state that
an employer is subject to vicarious liability for a hostile
environment created by "a supervisor with immediate
(or successively higher) authority over the employee."
Førøgher, 524 U.S. at807; see also EIIerth 524U.5. at
765. And a person who controls dailywork assignments
and schedules certainly may possess "immediate"-and
substantial-"authority over the employې," notwithstanding a lack of power to take tangible employment
actions.l The Court in Farøgher recognized as much,
as

I This Court has defined "tangible emplo¡.'rnent action" to include
"a significant change of employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."
E\lerth,524 U.S. at76J' "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 supewisors." Id,. at762. While those sorts
of actions affecting an employee's general employment status amount
to tangible employment actions, an alteration in an employee's dayto-daywork activities or schedule is generally not considered a tangible emplo¡rment action for these purposes. See EEOC, Enforcement

t4
noting that harassment by a supervisor "is aided by the
agency relation" because a supervisor's "po',ver to supervise-lwhich may be] to hire and fire, andto set worlr
schedules and pay rates-does not disappear when lthe
supervisorl chooses to harass through insults and offensive gestures rather than directly with threats of firing
or promises of promotion." 524 U.S. at 802-803 (quoting
Susan Estrich, Sen at Work,43 Stan. L. Rev. 813, 854
(1991)) (emphasis added). The Courtthus acknowledged
that the setting of day-to-day work schedules, although
not a tangible emplo¡rment action, may readily be among
the powers a supervisor uses to intimidate a subordinate.
The court of appeals' restrictive approach cannot be
squared with this Court's resolution of the specific
claims inFarøgher. There,the Court concluded thatthe
employer was vicariously liable for harassment by two
employees even though one had no authority to effect
tangible employment actions. Lifeguard captain David
Silverman was "responsible for making the femployees']
daily assignments, and for supervising their work and
fitness training." 524 U.S. at781,810. In contrast, Bill
Terry, Chief of the Marine Safety Division, had "authority to hire new femployees] (subiect to the approval of
higher management), to supervise all aspects of ltheir]
work assignments, to engage in counseling, to deliver
oral reprimands, and to make arecord of any such discipline." Id. at 781. The Court upheld vicarious liability
for both Silverman's and Terry's actions, explaining that
"these supervisors were granted virtually unchecked authority over their subordinates, directly controllling]
Guid,ance onVicarious Employer Liability

for Unløwful Harass(BNA) 405:7654 (1999), availmentby Superuisors, S FEP Manual
able at 1999 WL 33305874.

15

and supervisling] all aspects of [Faragher's] day-to-day
activities." Id. at 808 (internal quotation marks and ci-

tation omitted) (brackets in original).
The Court's focus on the porü¡er to supervise and control Faragher's "day-to-day activities" necessarily encompasses power over daily assignments, and necessarily applied to Silverman, who was responsible for making
the lifeguards' daily assignments. He thus could substantially determine the desirability (or undesirability)
of Faragher's daily work experience. Under the court of
appeals' restrictive approach, however, Silverman would
have merely been considered Faragher's co-worker because he lacked authority to take tangible employment
actions against her, even though he controlled her daily
assignments.2
c. Under this Court's application of agency principles
ín Farøgher and Ellerth, vicarious liability under Title
VII extends to harassment by employees with authority
to control the daily work activities of their victims. An
employee's "reluetan[ce] to accept the risks of blowing
the whistle on a superior," Faraghen 524 U.S. at 803, is

not confined to situations where the harasser has the
po\Mer to take tangible employment actions. See Ellertlt',
524 U.S. at76t. Because an employee with supervisory
por,¡¡ers vested by the employer may "implicitly threaten
to misuse lthosel supervisory porü¡ers to deter any re2

While the question of who is a supervisor was not directly at issue, this Court in Pennsglaania State Policev. Sud,ers,542 U.S. 129
(2004), evaluated the respondent's constructive discharge claim under
the Faraglt er and Ellerth framework for harassment by supervisors,
even though the harassers had no authority to take tangible employment actions. See Sud,ersv. Easton,3z5 F.3d 432,460 n.11 (3d Cir.
2003) (noting that supewisors could not take tangible employment
actions but were "responsible for day-to-day supervision").

16

sistance or complaint," Føragher,524 U.S. at 801, it may
be equally difficult for a victim to "walk away or tell the
offender where to go" when the harasser, although lacking authority to take tangible employment actions, directs the victim's daily work activities, id. at 803. Harassment in that context is aided by the agency relationship for purposes of the vicarious liability rules set forth
in Faragher and Ellerth.
This Court's decision in Burlington N orthern & S anta Fe Røilusag Co. v. White,548 U.S. 53 (2006), is instructive in this regard. There, the Court held that Title
VII's anti-retaliation provision, 42 U.S.C. 2000e-2(a), encompassed the retaliatory reallocation of job duties
within the same position. The Court explained that
"[a]lmost every job category involves some responsibilities and duties that are less desirable than others," and
"fc]ommon sense suggests that one good way to discourfrom bringing discrimination
àge an employee
charges would be to insist that she spend more time performing the arduous duties and less time performing
those that are easier or more agreeable." 548 U.S. at
70-71. It is equally a matter of common sense that the
authority to control an employee's day-to-day work assignments and schedule materially contributes to a person's ability to harass another and materially diminishes
the victim's practical ability to resist and respond.
d. A number of reported decisions illustrate how employees with authority to direct the dailywork activities
of others have used that power to threaten subordinates
into tolerating workplace harassment. In Føro'gher, fot
instance, lifeguard captain Silverman, who had authority
to "make [the victim's] daily assignments," 524 U.S. at
?81, subjected the victim to various forms of sexual harassment. In addition to tackling the victim, "pantomim-

t **

t7
[ing] an act of oral sex," making "frequent, vulgar references to women and sexual matters," and "commentling]
on the bodies of female lifeguards," Silverman explicitly
wielded his authority to direct the victim's work assignments by telting her, "[d]ate me or clean the toilets for a
year." Id. at780,782. This Court concluded thatvicarious liability'ùras appropriate, noting that Silverman "directly controllled] and supervisled] all aspects of [the
victim'sl day-to-day activities," and that the victim was
"completely isolated from the City's higher management." Id. at 808 (internal quotation marks and citations omitted).
Similarly, inWhittenv. Fred's, Inc.,60L EBd 231 (4th
Cir. 2010), the plaintiff was sexually harassed by a "store
manager," the senior employee on site. Id. at236.3 The
store manager controlled scheduling, and he told the
victim that if she wanted long weekends off from work,
she needed to "be good to [him] and give [him] what [he]
want[ed]." Ibid. (internal quotation marks and citation
omitted) (brackets in original). After she attempted to
ignore the store manager's harassment throughout the
work day, he ordered her to stay late and clean the
store, and he later revoked her day off. Ibid. The court
concluded that supervisor liability was appropriate under Farøgher and Ellertlt, because, "lu]nlike a mere coworker, lthe store manager] could change Whitten's
schedule and impose unpleasant duties on a whim,"
which made the victim "vulnerable to his conduct in
rways that comparable conduct by a mere co-worker
would not." Id,. at246.
B

Whitten involved only state law claims, but the court applied
the Faragher and Ellerllt framework, noting that South Carolina law
"essentially follows the substantive strictures of TitleVII." 601 F.3d
at242.

18

In Mack v. Oti,s Eleuator Co.,326 EBd 116 (2d Cir.),
cert. denied, 540 U.S. 1016 (2003), the plaintift an elevator mechanic's helper, alleged that she rtras sexually harassed by the "mechanic in charge" of her worksite,
James Connolly, who had authority "to assign and
schedule work" and to "direct the work force." Id. at
L20. Connolly referred to the victim on multiple occasions as an "attractive young lady," and told her repeatedly that she had a "fantastic ass," "luscious lips," and
"beautiful eyes." Ibid. Connolly regularly changed his
clothes in front of the plaintiff at the end of his shift,
boasted to her about sexual exploits, and on one occasion
"grabbed [her] by the waist, pulled her onto his lap,

tried to kiss her[,] and touched her buttocks." Ibid,

When matters grerrv increasingly tense between the two,
Connolly gave the plaintiff very little overtime work and
told her that he did not care if she complained about him
because "I get awaywith everything, I always have and
I always will." Id,, at t2l. The court concluded that
Connolly's authority to direct the plaintiff 's workday, in
addition to the fact that he was the senior employee on
site, clothed him with "special dominance over other onsite employees," and the harassment was therefore aided by Connolly's agency relationship with the employer.

Id. att25.
In each of these

cases, the employer vested certain
employees with authority to direct the daily activities of
others, and that por'ver was abused to harass individual
subordinates. That harassment was facilitated by the
authority vested by the employer, and vicarious liability
was therefore warranted under agency principles as applied by this Court in Føragher and EIIerth.
By contrast, decisions from circuits that have limited
supervisor liability to employees with authority to take

19

tangible employment actions illustrate how that restrictive rule unfairly shields employers from liability when
their agents harass victims by abusing delegated authority. In Rltod,es v. Illinois Department of Transportatton,359 EBd 498 (Tth Cir. 2004), for example, the
plaintiff was the only female employee during her first
two seasons as a highway maintainer. Id. at502. After
she complained about a route change, she alleged that
the two employees with responsibility for assigning
tasks in the work yard called her vulgar names, forced
her to wash her truck in sub-zero temperatures, assigned her to work in the yard instead of on road crews,
instructed a mechanic not to fix the heat in her truck,
and improperly marked her as absent from work when
she went to take a licensing test. Id. at 501-503. The
employer conceded that the plaintiff had been subjected
to a hostile work environment, id'. at 505, but the court
concluded that vicarious liability was un\Marranted because the harassers had no authority to make economic
decisions regarding the victim's emplo¡rm ent. Id,. at 506.
In a concurring opinion, Judge Rovner expressed concern that the court's unduly narrorü¡ definition of supervisor tiability tvas "troubling * {< t in a case like this"
and should be reexamined. Id. at 509. She explained
that, regardless of whether the harassers possessed
formal employm ent authori ty, " a factfind er reasonably
might conclude that the po\r/er fthe employer] had given
them to manage the Yard on a day-to-day basis enabled
or facilitated their ability to create a hostile work environment." Id. at5L0.
InWeyers v. Leør Operøti,ons Corp.,359 EBd 1049
(8th Cir. 2004), the plaintiff, who was 43 years old when
she was hired, alleged that she was subjected to a hostile work environment by her "team leader," who had au-

20

thority to assign her daily tasks. Id,. at 1051-1052. She
alleged that the team leader subjected her to constant
harassment about her age, including telling her "if
you're ovet 25, you're female, you're out of here. You
don't work for me. You don't work in my department."
Id. at L052 &, n.3, 1057. She also alleged that the team
leader used his authority to prohibit her from participating in training opportunities available to other ner'v employees, which she believed contributed to her dismissal.
Id. at 1057. The court ofappeals reversed ajuryverdict
in the plaintiff 's favor, concluding that the employerwas
not vicariously liable for the harassment because the
team leader "himself did not have the porwer to take

tangible employment actions against [the plaintiff]."
Ibid. The court noted that its "option of adopting the
broader * t * definition of supervisor status [had
beenl foreclosed" by circuit precedent. Id. at 1056-1057.
In EEOC v. CrRS? Vøn Erped'ited,, [nc.,679 EBd 657
(8th Cir. z}Iz),various female truck drivers attempting
to complete their employer's training program, which
involved a 28-day over-the-road training trip with a
"Lead Driver" who evaluated the trainee's performance
at the end of the trip, alleged that they were subjected
to sexual harassment during those trips. Id,, at665. One
victim alleged that a Lead Driver made constant sexual
remarks while giving her instructions, such as telling
her "the gear stick is not the penis of [your] husband,
[you] don't have to touch the gear stick so often" and
"[y]ou got big tits for your size," and that another Lead
Driver "forced [her] to have unwanted sex with him on
several occasions in order to get a passing grade." Id,. at
666. Another victim alleged that her Lead Driver repeatedly entered the cab wearing only his underpants
and rubbed the back of her head; ordered her to clean

21

up the truck when she complained about the mess, saying "that's what you're on the truck for, you're my bitch
t 'ß * ls]hut up and clean it up"; and that he routinely
urinated in bottles and bags in the cabin and ordered
her to "shut up and clean it up" when she complained.
Id. at688. Despite the Lead Drivers'repeated abuse of
authority to harass trainees, the court concluded that,
"[a]pplying lcircuit] precedent," the employer could not
be vicariously liable because it was "undisputed that
none of CRST's Lead Drivers wielded any * * * power" to take tangible emplo¡rment actions against the victims, Id,, at684.
e. Determining whether an employee who harassed
a subordinate has authority to direct the victim's daily
work activities will require evaluation of facts specific to
the emplo¡rment relationship between the harasser and
the victim. In Title VII, Congress "directed federal
courts to interpret Title VII based on agency principles," Ellerth,6z4 U.S. at754, and agency principles require evaluation of specific facts. See 1 Restatement
(Third) of Agency $ 1.02 (2006) ("'Whether a relationship
is one of agency is a legal conclusion made after an assessment of the facts of the relationship.").
This Court has recognized the need for a similarly
fact-specific approach in other Title VII contexts. "Context matters." Burlington Northern, 548 U.S. at 69.
For instance, the test for determining whether an employer took a prohibited retaliatory action against an
employee under Title VII's antiretaliation provision, 42
U.S.C. 2000e-2(a), depends on whether the challenged
action "might have dissuaded a reasonable worker from
making or supporting a charge of discrimination." BurLi.ngton Nortltern, 548 U.S. at 68 (internal quotation
marks and citation omitted). In adopting that standard,

22

the Court acknowledged that "the significance of any
given act of retaliation will often depend upon the particular circumstances." Id. at69. To determinewhether
unlawful harassment has occurred, moreover, the plaintiff must show that harassment was sufficiently severe
or pervasive to alter the terms and conditions of his or
her employment, and the severity of harassment "should
be judged from the perspective of a reasonable person in
the plaintiff 's position, considering all the circumstances." Onca,Iev. Sundowner Offshore Serus., Inc.,523U.S.
75, 81 (1998) (internal quotation marks and citation
omitted).
In any event, the court of appeals' more restrictive
approach does not necessarily offer a bright-line alter'Whether
native.
an employee has authority to take tangible emplo¡rment actions against a victim may not be
clear in an employer's policy documents, and there may
be no examples of the alleged harasser taking such actions. As a factual matter, the inquiry into whether an
employee possesses authority to direct a subordinate's
daily activities may be no more contextual than the inquiry into whether he has authority to take tangible employment actions. In either case, the analysis will turn
on consideration of the particularities of the authority
possessed by the putative supervisor.

2.

Imposing uícarious liabilíty for hørøssment by a.n
employee with øuthoríty to dírect the aictim's døily
worlc øctívitíes ís consistent with the obiectíves of
TítIe VII

Imposing vicarious liability on an employer for harassment by an employee with authority to control the
victim's daily work activities not only is consistent with
this Court's application of agency principles inFaragher

23
and

Ellertlt,but also is consistent with the objectives of

Title

VII.

a. The primary object of Title VII is not "to provide
redress but to avoid harm." Førøghen 524 U.S. at 806
(citing Albemørle Paper Co. v. Moody, 422U.5. 405, 4L7
(19?5)); see also Ellerth,524 U.S. at764 (noting "Title
VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms").
The Courtin Føragher and Ellerth took special care to
"adapt agency concepts to the practical objectives ofTitle VII" by recognizing an affirmative defense through
which employers may avoid liability for harm inflicted
by supervisors by implementing policies designed to
prevent and correct harassment. Faraglter,524 U.S. at
802 n.3. The affirmative defense is unavailable in cases
in which a tangible employment action is taken. In
those circumstances, the "official power of the enterprise" has been brought to bear on the victim, and the
"aided by the agency relation" standard is satisfied.
E\lerth,5z4 U.S. at762-763. But in cases where no tangible emplo¡rment action is taken, an employer can avoid
liability for supervisor harassment by showing that it
exercised reasonable care to prevent and correct harassment and that the plaintiff employee unreasonably
faited to take advantage of those preventive and corrective opportunities. Faragher 524 U.S. at 807; Ellerth,
524 U.S. at764-765.
The affirmative defense establishe d in F ar a'g her and
ELLerth "accommodates lthe avoidable consequences]
doctrine by requiring plaintiffs reasonably to stave off
avoidable harm. " Pennsglu aniq, Sta,te Po\i'ce v. Sud'er s,
542 U.S. L29, L46 (2004) (internal quotation marks and
citation omitted). Properly applied, the defense encourages employers to screen supervisors, monitor them,

24

and establish effective training and complaint programs.
Farøghey 524 U.S. at 803; Ellerth,524 U.S. at764-765.
The defense thus promotes Title VII's "designf] to en-

courage the creation of antiharassment policies and effective grievance mechanisms." Id'. at764.
If employers face vicarious liability only for the actions of those supervisors with por'ver to take tangible
employment actions, employers could attempt to insulate themselves from vicarious liability by confining the
authority to effect tangible employment actions to a centralized personnel department. Such a department
might be off site, and might have indirect or infrequent
contact with potential victims, leaving workers vulnerable to harassment by those with the greatest day-to-day
ability to create intolerable working conditions. Cf.
Faragher 524 U.S. at 808 (noting that supervisors supervised and controlled "all aspects of fFaragher's] dayto-day activities" and "had virtually unchecked authority," and that "Faragher and her colleagues rtvere completely isolated from the City's higher management")
(internal quotation marks omitted).
In that event, employers would have a diminished incentive to train or monitor immediate supervisors. And
victims would have a diminished ability and incentive to
make use of any available grievance procedures. That
arrangement would disserve the core purposes of Title
VII. But if supervisory liability were properly considered to encompass the authority to control day-to-day
work assignments, employers would lack any comparable ability or incentive to avoid vicarious liability by assigning that authority to a remote, central department:
by nature, the assignment of day-to-day activities and
schedules generally requires the exercise of on-site discretion and supervision. Employees' moreover, would

25

be better positioned to take advantage of internal complaint procedures.
This Court recently addressed a similar dynamic in
Staub v. Proctor Hospital,131 S.Ct. 1186 (2011), a case
arising under the Uniformed Services Emplo¡rment and
Reemployment Rights Act of L994,38 U.S.C. 430I et
søq., which the Court has recognized "is very similar to
Title VII." Staub,131 S. Ct. at 1191. In Støub, the employer fired the plaintiff based in part on reports from
biased supervisors, including the plaintiff 's immediate
supervisor and a more senior supervisor. Id,. at 1189.
The Court concluded that the employer could be vicariously liable for the discharge even though an unbiased
vice president of human resources took the challenged
employment action. Otherwise, the Court explained, an
employer could "be effectively shielded from discriminatory acts and recommendations of supervisors" by vesting ultimate authority for personnel decisions in an independent official. Id. at 1193. The same considerations
counsel in favor of recognizing that an employee with
authority to direct day-to-daywork activities qualifies as
a supervisor for purposes of vicarious employer liability'

b. In addition to promoting deterrence, Title VII
provides a means "to make persons whole for injuries

suffered on account of unlawful emplo¡rment discrimination." A\bemørle Paper Co.,422 U.S. at 418. Commonlaw principles hold an employer vicariously liable for the
wrongful acts of its agents to promote compensation of
victims of wrongful conduct. Prosser and Keøton onthe
Lotut of Torús 500-501 (W. Page Keeton ed.,5th ed. 1984).
The common-law approach rests on the view that, because the employer has sought to profit through its
agents, the employer, rather than the innocent victims,
should bear the costs when those agents abuse their del-

26

egated authority to injure others. Ibid. Because employers benefit from empowering lower-level supervisors to direct other workers, it is appropriate that they
should, subject to the Farøgher and Ellertla defense, be
subject to liability for abuse of that potrer.

B,

The EEOC's Longstanding Interpretation Is Reasonable And Entitled To I)eference

Shortly after the Court decided Faragher

and
guidance definELLerth, the EEOC issued enforcement
ing who qualifies as a supervisor for purposes of vicari-

ous employer liability under Title VII. EEOC, Enforcement Guidunce on Vicarious Employer Liability
for Unløwful Harøssmentbg Superaisors, 8 FEP Manual (BNA) 405:7654 (1999), available at 1999 WL
33305874 (reproduced at Pet. App. 81a-93a) (EEOC
Guidance). The guidance provides that an individual
qualifies as a supervisor if:
a. the individual has authority to undertake or recommend tangible emplo¡rment decisions affecting the
employee; or
b. the individual has authority to direct the employee's daily work activities,
Pet. App. 90a (emphasis added). That guidance is "an
administrative interpretation of lTitle VII] by the enforcing agency," and "constitutels] a body of experience
and informed judgment to which courts and litigants
may properly resort for guidance." Meritor Saa. Banlc,
fsbï. Vinson,477 U.S. 57,65(1986) (internal quotation
marks and citations omitied). The court of appeals initially adopted its narrow construction of supervisor liability without the benefit of the EEOC's guidance. The
Court should afford deference to that considered guidance in resolving the question presented.

27

1. Agency enforcement guidelines are "entitled to re-

spect" when the agency has shown "thoroughness * * *
in its consideration" and "validity [in] its reasoning."
Skid,morev. SwiftCo.,323 U.S. 134, 140 (L944);see Ma,rtin v. Occupationa,I Safety & Health Reuiew Cont'rn'n,
499 U.S. 144, 156-L57 (1991). The EEOC's guidance
document demonstrates that the EEOC thoroughly considered the issue of supervisory status to formulate a
position on the scope of vicarious liability under Title
VII. The guidance document is entitled to deference.
To define the scope of supervisor liability under Title
VII, the EEOC explained that because vicarious liability
for supervisor harassment under Farøgher and Ellerth
is grounded in the harasser's potential misuse of dele-

gated authority, "that authority must be of sufficient
magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment" for vicarious liability to exist. Pet. App. 89a. The EEOC concluded
that, when an employee has authority to direct another
employee's day-to-day work activities, that person's
ability to harass "is enhanced by his or her authority to
increase the employee's workload or assign undesirable
tasks," and vicarious liability is therefore appropriate.
Id. at 91a. The EEOC explained that its interpretation
\Mas supported by the Court's resolution of the specific
claims in Farøgher, in which the Court concluded that
Silverman rffas a supervisor notwithstanding his lack of
authority to take tangible employment actions. Id. at
9ta-92a.
The EEOC's guidance also recognizes limits on who
should qualify as a supervisor by virtue of authority to
direct another employee's daily activities. Those limits
are directly tied to whether harâssmentwould be "aided
by the agency relation" in specific circumstances. The

28

guidance explains that a determination of supervisor
status "is based on lthe employee's] iob function rather
than job title (e.g., 'team leader') and must be based on
the specific facts." Pet. App. 89a-90a. Moreover, if an
employee is only temporarily authorized to direct the
daily work activities of another, the employer is vicariously liable only for unlawful harassment that occurs
during that temporary period. Id. at92a. The guidance
further clarifies that an employee who "merely relays
other officials' instructions regarding work assignments
and reports back to those officials does not have true
supervisory authority," and harassment in that scenario
would not be aided by the agency relationship. Ibid.
And an employee who directs "only a limited number of
tasks or assignments" for another employee likewise
would not have sufficient authority to qualify as a su-

pervisor. .Ibid.
The EEOC's guidance has governed the agency's enforcement actions since 1999, and the EEOC has filed
numerous briefs in the courts of appeals setting forth its
understanding. See EEOC Br. as Amicus Curiae,
Dulaney v. Paclcøging Corp. of Am., 673 EBd 323 (4th
Cir.2012) (No. 10-2316); EEOC Br,CRST, s'üpra (Nos.
09-3764,09-3765, 10-1682); EEOC Pet. for Reh'g and
Suggestion for Reh'g En Banc,CRST, s%prai EEOC Br.
as Amicus Curiae, Whitten, supra(No. 09-1265); EEOC
Br. as Amicus Curiae, Wegers, supra (No. 02-3732);
E.EOC Br. as Amicus Curiae, Mack, supro" (No.02-7056).
The agency's consistent position warrants a measure of
deference. See Køsten v. Sa'i,nt-Gobain Perþrmønce
Plastics Corp., 131 S. Ct. L325, 1335 (2011) (giving
weight to EEOC's consistent position set forth in compliance manual and court of appeals briefs); Federal Erpress Corp. v. Ho\owecki,552 U.S. 389, 399 (2008) (not-

29

ing, in deferring to EEOC guidance, that it had "been
binding on EEOC staff for at least five years").
2. The court of appeals initially adopted its restrictive view of supervisor liability under Title VII without
the benefit of the EEOC's guidance. Shortly after this
Court decided Faragher and Ellerth, the court of appeals held in Pørkins v. Ciuil Constructors of Illinois,
Inc., L63 EBd 1027 (?th Cir. 1998), that supervisory authority under those cases "primarily consists of the
power to hire, fire, demote, promote, transfer, or discipline an employee." Id,. at 1034. The Parlciøs court explained that "[a]bsent an entrustment of at least some of
this authority, an employee does not qualify as a supervisor for purposes lofl imputing liability to the employer." Ibi"d. In its decision below, the court of appeals reiterated that holding.
The EEOC issued its guidance shortly after the court
of appeals' decision in Pørkins, and certain judges then
called for the court of appeals to reconsider its holding.
See Rhod,øs, 359 EBd at 509 (Rovneq J., concurring in
part and concurring in the judgment); id. at 510
(Cudahy, J., concurring). The court of appeals, however,
has continued to hold that employees who assign tasks
and recommend discipline fail to qualify as supervisors.
Id. at506; see also Hallv. Bod,ine Elec. Co.,276F.3d345,
355 (?th Cir.2002) (finding no supervisory status where
harasser directed work, contributed to evaluations, and
trained victim). Consistent \Mith the EEOC's guidance,
this Court should reject the court of appeals' unduly restrictive approach and hold that supervisory liability extends to harassment by an employee who has authority
to direct the victim's daily work activities.

30

C.

On The Existing Record

In This Case, I)avis Fails To

Qualify As Petitioner's Supervisor
For the reasons explained above, the court of appeals

erred in refusing to recognize thal supervisor liability
under Title VII extends to harassment by employees
with authority to direct the day-to-daywork activities of
their victims. But here, even under the correct legal
test, Davis-the only employeewhose supervising status
is in issue, see Pet. 29-would fail to qualify as petitioner's supervisor on the record as it currently stands.
At the summary judgment phase, the parties engaged
in substantial discovery of the facts pertaining to petitioner's claims. There is scant evidence in the resulting
record that Davis exercised the requisite authority over
petitioner's daily work activities. Petitioner's deposition
testimony describes no instances inwhich Davis actually
directed her work. J.A.102-248. Petitioner now points
to indicia in the record of Davis possessing a lead role in
the kitchen of some sort, see Pet. Br. 10, 42-43, but there
is no evidence describing the nature of any authority
over petitioner or whether the authority encompassed
control of day-to-day work activities. And petitioner
would be required to do more than demonstrate that
Davis possessed some minimal level of authority over
petitioner, because "someone who directs only a limited
number of tasks or assignments would not qualify as a
'supervisor."' Pet. App. 92a (EEOC Guidance).4
The record also does not demonstrate that petitioner "reasonably
believed" Davis was her supervisor. See Pet, App. 92a (EEOC Guidance) (noting that an employer may be vicariously liable "if the employee reasonably believed that the harasser had [supewisory] power," even if that belief is false). When asked whether she considered
Davis her supervisor at the time of their confrontation at the elevator
in April 2006, petitioner replied: "I don't know what she is." J.A.
a

31

Petitioner did refer to Davis as a "supervisor" or
"kitchen supervisor" in various complaint forms. J.A.
28-29,45; Docket entry No. 60-12, at I. And another
employee stated that Kimes had told him Davis was a
supervisor. J.A. 385-387. Davis's job description also
states that she "lead[s] and directfs]" "kitchen parttime, substitute, and student employee helpers" and supervises "[k]itchen [a]ssistants and ls]ubstitutes." J.A.
L2-13. And Kimes acknowledged that Davis directed
employees "[a]t times." J.A. 367.
But even if Davis was labeled a "supervisor" and her
job description characterized her as supervising petitioner, that would not suffice. Supervisor status "is
based on * * * job function rather than job title" and
"must be based on the specific facts." Pet. App. 89a40a
(EEOC Guidance). The record as it stands contains no
specific facts demonstrating that Davis directed petitioner's day-to-day work. In fact, the record suggests
that either Kimes or the chef outlined petitioner's daily
tasks on "prep lists." Id,. al 4la-42a,72a. While Davis
on occasion may have handed petitioner her prep lists,
the record does not showthat Davis prepared them. See
J.L.74. And someone "\Mho merely relays other officials' instructions regarding work assignments" does not
qualify as a supervisor. Pet. App.92a (EEOC Guidance).
Nor would it be enough for petitioner to show that Davis
occasionally took the lead in the kitchen. An employer
may be liable where a temporary supervisor "commits
unlar,vful harassment of a subordinate while serving as
19?; see also Pet. App. 54a. Petitioner explained that, "one day she's
a supervisor; one day she's not. One day she's to tell people what to

do, and one day she's not." /bid. Asked whether Davis was her supewisor even "intermittently, once in a while," petitioner answered
that she was "not sure." J,A. 198.

32

his or her supervisor." Ibid. Bttt here, the record contains only oblique references to any exercise of authority by Davis and fails to indicate that the harassment occurred during any such period.6
This Court on its own could review the reeord as it
presently stands to determine whether summary judgment r'vas appropriately granted on that record under
the correct legal standard. The Court's usual practice,
however, is to remand to the lower courts to apply the
correct standard as announced by this Court. See, e.9.,
AIIison Engine Co. v. United States ex rel. Sand'ørs,553
U.S. 662, 673 (2008); Sprint/United' Mgmt, Co. v. Mendelsohn,552 U.S. 379, 388 (2008); Tellabs, Inc. v. Malcor
Issues & Rights, Ltd.,55L U.S. 308, 329 (2007); Merclt
KGaAv. Integra Li,fesciences I, Ltd.,545 U.S. 193, 208
(2005). In any remand, the courts below presumably
would also have discretion to determine whether it
would be appropriate to allow petitioner to amend her
pleadings or supplement her discovery to attempt to satisfy the correct standard. See Ellerth,524 U.S. at 766.
CONCLUSION

The judgment of the court of appeals should be vacated and the case remanded for further proceedings
consistent with the Court's decision.

Respectfully submitted.

õ

Petitioner's obsewation that Davis "d[id not] clock in" may

indi

cate that Davis outranked petitioner in the organizatíonalhierarchy,
but it does not show that she had authority to direct petitioner's dayto-day activities. Pet. App. 54a; see also Mikels v. City of Dtnham,
183 F.3d 323, 334 (4th Cir, 1999) (finding no supervisory status where

harasser outranked victim but had "minimal" authority over her).

33

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