The Breakfast Table

Sexual harassment at the Supreme Court: Lessons from the ice cream store.

A disappointing Supreme Court decision on sexual harassment.

Christina Briscoe scoops ice cream at Il Laboratorio del Gelato, an ice cream shop in New York, July 15, 2012.
A woman scoops ice cream at a shop in New York. On Tuesday, the Supreme Court ruled in a case involving ice cream shop employees who were sexually harassed by a shift supervisor.

Photo by Andrew Burton/Reuters

Vance v. Ball State University, decided by the Supreme Court on Monday, 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 for the harassment only if the employer’s own negligence contributed to it. But if the harasser is a supervisor, the employer may be liable for the harassment even if it has done nothing negligent. Yet what, for these purposes, 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 (joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan) 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, conferred by the employer, 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. Justice Alito’s use of the term “such as” leaves the meaning of “tangible employment action” open-ended. Is either his definition or Ginsburg’s helpful? I think not. Cases of employer liability for workplace harassment of one employee by another can be handled satisfactorily without attempts at classifying the harasser—attempts further confused by dividing supervisors into those whose supervisory responsibilities make them “supervisors” for purposes of their employer’s liability and those whose responsibilities fall short: They are called supervisors and have supervisory duties, but not the right duties.

I noticed in a footnote in the dissent a reference to a case that seemed familiar. I thought I might have written it, and it turned out I had. It’s called Doe v. Oberweis Dairy, it was decided in 2006, and the dissent quotes the following passage 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” (emphasis added). I didn’t think it necessary to choose between those classifications.

The plaintiff in Doe was a 16-year-old high school student who had been hired as a part-time ice cream 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,” “grab butts,” “hug,” and give “tittie twisters.” He did these things in the store. He would also invite 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 that decided the case states that if “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), whereby the employer’s liability would depend on the contextually significant practical authority that the employer conferred on the employee who turned out to harass another employee. The plaintiff’s youth relative to Nayman, the fact that often he was the only supervisor present in the ice cream parlor, the absence of other adults—these were the facts that indicated irresponsible employment practices by the company. Nayman’s lack of authority to fire or promote the girl, or cut or raise her wages, was unimportant. 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 and evaluate. A jury might, however, be confused by having to decide in accordance with Vance when a supervisor is not a supervisor

The dueling opinions in Vance confirm the view that I advanced in my first comment in this series—that the Supreme Court’s opinions are too long. They are too long mainly because their authors spend a great deal of time trying to squeeze juice out of previous opinions that deal with substantially different employment situations. Most judges feel naked if they can’t tie a case back to some precedent, or some other bit of legal text, yet often they evince little interest in facts that may make all the difference. 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.