A case before the
Supreme Court offers some mission-related considerations for Catholic colleges
and universities
By
Gary L. Miller
Which job duties and degrees of authority constitute
a supervisory position? This question is expected to be addressed in a case currently
before the U.S. Supreme Court, Vance v.
Ball State University. While the decision will have significant practical
consequences for employers, the case itself provides some best practices in
Human Resources (HR), as well as an important reminder to executives. Additionally,
it offers an opportunity for reflection on HR and management priorities in
mission-driven Catholic organizations.
In 2006, Maetta Vance sued Ball State University claiming,
among other things, racial harassment resulting in a hostile work environment,
which Title VII of the Civil Rights Act of 1964 prohibits. Further, she claimed
that one of the harassers had supervisory authority over her. The outcome of
the case will largely center around whether the harasser in question was a co-worker
or a supervisor. If the harasser is found to have been a co-worker, then the
university only has to demonstrate that there were legitimate channels for
employees to report harassment, that the reported complaints were promptly
investigated, and that appropriate corrective actions were taken.
On the other hand, if the offender is found to have been
a supervisor, Ball State could be liable for the harassment, because the
applicable law stipulates that supervisors are considered agents of the
employer. As such, their actions are imputed to the employer, in this case, the
university. So, if a supervisor illegally harasses a subordinate, the employer
is liable.
Lessons for Human Resources
The Seventh Circuit Court of Appeals decided that
the alleged harasser was not a supervisor and that Ball State had taken the proper
steps to address co-worker liability. Ball State’s practices in responding to Vance’s
complaints provide several lessons for other university HR offices pertaining
to co-worker harassment.
First, the university had an employee complaint
process and employees evidently knew how to use it. In addition, the university
investigated each complaint promptly and took legally appropriate actions to
address the situation and prevent its recurrence. Finally—a particularly
important lesson for higher education given the number of credit hours taught
by part-time faculty—Ball State did not discount Vance’s complaints, even
though she was a part-time employee when she began filing complaints with the
university. The university accurately viewed and treated her as having the same
legal rights and protections as a full-time employee.
A Reminder for Executives
While the appeals court found that the university
was not negligent regarding co-worker harassment, Vance may ultimately prevail
if the U.S. Supreme Court agrees with her that one of her harassers was, in
fact, a supervisor. Again, the central question centers around the
responsibilities and level of authority an employee must have in order to be
considered a supervisor. The Seventh Circuit, in addition to other circuit
courts, has historically held that in order to be considered a supervisor, an
employee must have the authority to affect the “terms and conditions” of a
subordinate’s employment, meaning the power to hire, fire, promote, and discipline.
Other circuit courts and the Equal Employment Opportunity Commission have maintained
that supervisors also include those who merely direct the work activities of
others.
If the U.S. Supreme Court goes with the broader
definition, the possibility for an employer to be found liable for harassment
increases because more employees will be considered supervisors. When a
supervisor illegally harasses a subordinate, the employer cannot escape
liability by having a complaint procedure in place or by promptly investigating
complaints.
Herein lies the important reminder: Your supervisors
and managers represent the university. Why does this seemingly obvious fact deserve
a reminder? Because employers who fail to recognize the importance of soft
skills and mission-aligned values when hiring managers—skills and values such
as knowing how to convey respect for others or recognizing that people have
important needs and sensitivities different from their own—can get an employer
into legal trouble. While managers can and should be trained and developed, is
it worth the legal risk to hire a manager deficient in these values and soft
skills and then try to change them?
In addition to potential compliance and financial
liabilities, managers who run roughshod over their staffs have been shown to
adversely affect their subordinates’ work behaviors and, in turn, the treatment
of customers. Particularly relevant research for universities suggests that
students’ perceived treatment by instructors in a classroom correlates with
instructors’ perceptions of how they are treated by their management. So not
only do supervisors and managers represent the university in a direct and legal
sense, their actions affect the performance of their subordinates and,
indirectly, can influence the service levels provided to students and others.
Integrating a New Standard
The outcome of the Vance case may have serious implications for many employers,
including Catholic colleges and universities. If the U.S. Supreme Court
clarifies that employees who are authorized to direct the daily work activities
of others, even though they do not have the authority to hire, fire, promote, and
discipline, must now be treated as management, policies that are specific only
to managers would have to be clarified and communicated to a much broader
audience. Also, employers would need to significantly expand management
compliance training and, of course, implement a method for tracking and
flagging these individuals as managers in organizations’ HR/payroll systems.
Beyond this, internal HR/diversity standards pertaining
to remedial measures in discrimination and harassment cases would need to be
reconsidered. Because supervisor/management harassment create a greater likelihood
of liability for employers than does co-worker harassment, disciplinary
measures for offending management employees are often more stringent. These
tougher measures also would need be expanded to the team leader level.
Elevating Policies and Practices
In a brief survey of Catholic college and university
HR websites, I found that the values of Catholic Social Teaching are often
directly expressed in HR mission statements and convey an expectation that
employees will be treated with dignity. Phrases such as “developing the well-being
of employees,” “respect, compassion, and love,” and “treating employees with
the respect of those created in the image and likeness of God” clearly suggest
an expectation that employees will not be discriminated against or harassed for
any reason.
Given that finding, why not tie HR policies and
practices directly to these values? After all, if the management standard indicates
that all employees are to be treated with dignity, doesn’t that already convey
the minimum expectation that managers and supervisors will not engage in illegal
discrimination and harassment? Additionally, a policy with “dignified treatment
of employees” as a guiding principle would also cover forms of harassment and
discrimination resulting from attributes that are not universally protected,
such as lifestyle and weight. This approach would seem consistent with Catholic
mission values, protecting faculty and staff from all forms of improper discrimination
and harassment, not just those attributes protected under current law.
Integrating HR policies and practices under mission
values could apply to almost all HR policies. Consider the legal obligation
employers have to provide reasonable accommodation for disabled employees. Yes,
it’s the law, but isn’t providing reasonable accommodation also consistent with
treating employees with dignity? Further, isn’t it also a best practice to accommodate
an employee’s disability when doing so would help retain a skilled and talented
employee?
While some employers may be preparing to make
changes if the U.S. Supreme Court sides with Vance, perhaps Catholic colleges
and universities will resolve to make changes regardless of the outcome, not
only because of the lessons this case provides, but also because of the
importance of placing mission values at the forefront of their policies and
practices, calling all employees to a higher standard.
The opinions expressed
in this column are the author’s alone and do not represent those of DePaul
University or the Association of Catholic Colleges and Universities.
For More Information
Ruling of the United States Court
of Appeals for the Seventh Circuit,
Maetta Vance v. Ball State University,
decided June 3, 2011
The Management of Organizational
Justice, by Russell Cropanzano, David E.
Bowen, and Stephen W. Gilliland
Supreme Court to Look at Who Is a 'Supervisor' in
Harassment Cases, by
Nina Totenberg, NPR, November 26, 2012
