On February 25, 2012 the Tenth Circuit Court of Appeals (the federal appeals court with jurisdiction over the federal district court in Utah) issued a very important decision applicable to Title VII harassment claims.
In Kramer v. Wasatch County, No. 12-4058, the Tenth Circuit Court of Appeals reversed the Utah District Court's decision granting summary judgment on Ms. Kramer's Title VII sexual harassment claim against Wasatch County. In rendering its decision, the Tenth Court addressed in detail for the first time the U.S. Supreme Court's recent decision in Vance v. Ball State Univ., 133 S.Ct. 2423 (2013). In Vance, the U.S. Supreme Court held that a “supervisor” under Title VII is an employee whom “the employer has empowered . . . to take tangible employment actions against the victim, i.e., to effect 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.’” Id. (quoting Ellerth, 524 U.S. at 761). The U.S. Supreme Court further noted 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. Id. at 2452. Similarly, in Staub v.Proctor Hospital, 131 S. Ct. 1186 (2011) the U.S. Supreme Court held that employers could be liable for tangible employment actions influenced by a biased subordinate, even though the final decisionmaker was unbiased.
In Kramer, the Tenth Circuit reviewed the U.S. Supreme Court's decisions in Vance and Staub and held that if a supervisor has or appears to have the power to take or substantially influence tangible employment actions (e.g., firing, hiring, demotions, changes in title, duties, pay) and used the threat of taking such actions to subject an employee to a hostile work environment, then the employer is vicariously liable for the supervisor's severe or pervasive sexual harassment. Importantly, the opinion provides significant guidance on who can qualify as a supervisor and what types of actions qualify as tangible employment actions for purposes of Title VII liability. After reviewing the facts in the case, the Tenth Circuit reversed the Utah District Court's grant of summary judgment on her Title VII claim, allowing it to proceed to trial. The Court held that there were issues of fact as whether the harasser has the power to recommend and influence tangible employment actions against Kramer, and whether, under apparent authority principals, it was reasonable for Kramer to believe that the harasser held such authority even if he, in fact, did not have such authority.
In reviewing the facts of the case, the Tenth Circuit held:
Where an harasser is empowered to effect significant changes in employment status indirectly through recommendations, performance evaluations, and the like, and where the person with final decision-making power does not work directly with the plaintiff, the harasser may be a “supervisor” under Title VII.
Moreover, in line with previous U.S. Supreme Court decisions, the Tenth Circuit went on to hold that in certain circumstances, albeit unusual circumstances, an employee may be able to establish that it was reasonable for her to assume that the supervisor had authority to effect tangible employment actions even when the supervisor had no such authority. The Court relied on apparent agency principles and held that whether or not the harasser had apparent authority was a question of fact.
We'll provide more guidance on this case in the future. But we wanted to give you a heads up and an opportunity to read the Court's lengthy opinion because it's a case that all Utah employers and employees (and their counsel) must be familiar with if they operate or work within the jurisdiction of the Tenth Circuit.
