In March of 2011, Samantha Stabenchek, a 17-year-old at the time, was cornered by her Safeway colleague Jose Lopez at their store. He grabbed her buttocks and kissed her. Stabenchek had endured months of sexual harassment at the hands of Lopez, who made inappropriate comments and sent her explicit text messages. After an internal investigation, the Scottsdale, Arizona store fired him.
Less than a month later, Stabenchek’s mother Mary McCormack, who also worked at Safeway and reported the assault on behalf of her daughter, was accused of violating a store policy on coupons, and the two resigned, feeling that it was connected to the complaint.
They filed a sexual harassment and retaliation lawsuit against Safeway in 2012. The details of the harassment Stabenchek experienced were never up for debate. Instead, the case hinged on whether Lopez counted as her supervisor. When a supervisor harasses someone who works under him, a company like Safeway has a heightened level of responsibility and can be held vicariously liable. If, on the other hand, Lopez was deemed to merely be her coworker, the employer is only held liable if it was negligent in overseeing working conditions and addressing harassment once it became aware of the situation, a standard that’s become very hard for victims to meet and therefore get recompense from their employers.
Stabenchek and McCormack argue that Lopez was, for all intents and purposes, her supervisor. When Stabenchek started the job, he was a front-end manager who was often in charge of the store and controlled when she could take breaks and clock out of work.
“Things like schedules are significant changes for workers,” Liz Watson, senior counsel and director of workplace justice for women at the National Women’s Law Center, told ThinkProgress, “because they have everything to do with how much money someone earns.” He also sat in on one of her initial job interviews and directed her to sign binding documents for the company.
Before June of 2013, a court may have very well found that Lopez was her supervisor. But that’s not how her case went. Thanks to a Supreme Court decision in the Vance v. Ball State University case, the judge presiding over Mary McCormack, et al v. Safeway Stores Incorporated decided that Lopez wasn’t her supervisor. The Vance decision significantly narrowed the definition of supervisor when it comes to harassment cases, limiting it to someone who has the power to hire, fire, promote, or otherwise tangibly impact a report’s employment.
Advocates for the victims of sexual harassment feared that the Vance decision would make it more difficult to get justice. Their fears have played out. According to an analysis from the National Women’s Law Center conducted for ThinkProgress, 43 sexual harassment cases have been dismissed because a supervisor didn’t meet Vance’s restricted definitions, and the victim couldn’t prove that the employer was negligent in coworker harassment. (Vance also applies to harassment on other grounds, but the analysis is limited to sexual harassment cases in federal courts.)
Stabenchek’s story is one of the 43 identified by NWLC. David G. Campbell, the judge in the District Court for the District of Arizona who ruled on the case, cited Vance in his decision to declare Lopez a coworker rather than a supervisor. “Vance requires Plaintiffs to show that Lopez had power to make economic decisions affecting Stabenchek’s employment at Safeway such as the ability to fire, hire, promote, or change Stabenchek’s compensation,” he wrote. “Plaintiffs have presented no evidence that Lopez possessed such authority.”
“Undisputed facts show that Lopez was not Stabenchek’s supervisor as a matter of law. As a result, Safeway cannot be held vicariously liable for Lopez’s harassment,” he concluded. Because Stabenchek didn’t tell anyone about the harassment until after her assault given that she was too embarrassed and uncomfortable, because it fired Lopez after the assault allegation, and because her report of other incidents of sexual harassment at the store — such as Lopez slapping women on the buttocks and making sexual comments — didn’t appear to offend the women, Campbell also didn’t find Safeway negligent in regards to coworker harassment. Safeway got off free, and after the case was appealed to the Ninth Circuit, it was settled after mediation, according Stabenchek’s lawyer Joy Bertrand. Neither Bertrand nor Stabenchek and her mother agreed to be interviewed for this story.
“We are seeing cases in which, after Vance, employees who have suffered egregious harassment are having their cases thrown out on a court determination that the definition of supervisor isn’t met,” the NWLC’s Watson said. “The concerns of folks who want to make sure that legal remedies are available to victims of harassment about the Vance decision are being borne out.”
“These are cases where they’re not contesting on the merits, not contesting the question of whether egregious harassment occurred,” she added. “The employer doesn’t even have to engage with that. Just at the outset of the case they get it kicked out on a technical issue of who’s a supervisor.”
At the outset of the case they get it kicked out on a technical issue of who’s a supervisor.
This is happening even when the Vance decision shouldn’t mean such a determination. In the decision, “the court said that the employer has the heightened responsibility to protect against harassment by employees who have the ability to take tangible employment actions,” Watson explained. “It didn’t just say hiring and firing.” If an employer has effectively delegated the ability to take actions that have a tangible impact on a worker’s employment, then that employee can still be deemed a supervisor even after the Supreme Court’s decision. “If on paper it sits with one person but in fact it is delegated to another, it’s not a way for employers to completely escape liability,” she said.
But the interpretation of that has been uneven, and many courts are making decisions as if Vance said only those who can hire, fire, or give promotions are supervisors. The National Women’s Law Center found that only eight of the reviewed cases even considered whether the employer had effectively delegated supervisory authority to the harassers. “Courts are not consistent in actually looking at whether there’s been effective delegation of supervisor responsibilities,” Watson noted.
In one case that was thrown out, Stanley v. Nw. Ohio Psychiatric Hosp., the harasser had the authority to begin disciplinary hearings, had input into the outcome of those hearings, and had the title “Nurse Supervisor.” Patricia Stanley alleged that after she gave birth this employee asked whether her breasts had gotten larger, touched them, asked her if she still got “wet down there,” and grabbed her stomach and asked “did the doctor forget one down there,” but her case was dismissed because the court found he wasn’t a supervisor and she couldn’t prove employer negligence. According to the National Women’s Law Center, “The court did not engage in any analysis of whether the employer had effectively delegated supervisory authority to the harasser.”
By contrast, in one of the eight cases where the courts considered the factor of delegation, a woman named Carole Lindquist alleged that her operations manager hugged and kissed her on multiple occasions, physically tried to prevent her from leaving a shed when they were alone, often urinated in front of her, and called her at her home. Given that the manager had the authority to decide whether she could transition to a full-time position and submitted her performance evaluations, a district court in South Carolina held that in Lindquist v. Tanner he was her supervisor and that the employer may have effectively delegated that authority to him. Six of the eight cases where effective delegation was considered were able to proceed.
One remedy for this uneven landscape would be for the Equal Employment Opportunity Commission (EEOC) to make it crystal clear how courts should be interpreting Vance in these cases. “The EEOC needs to clarify for the courts that they should not adopt a very constrained interpretation of the Vance decision,” Watson argued.
The EEOC itself agrees. David Lopez, general counsel at the EEOC, told ThinkProgress, “Courts are really trying to figure this out in terms of the reach of the Vance decision.” And it’s on the lookout for a way to get involved. “The EEOC has a very robust amicus program, so this is actually something we’ve been monitoring for an opportunity to weigh in,” he said. “We’re waiting for the right case.”
And it’s working on coworker harassment at the same time. “We’re also trying to make sure we fully explore and fully develop what negligence theory means at this point in the workplace harassment context,” he said.
The National Women’s Law Center argues that courts are also falling down on this definition. It found that only seven reviewed cases discussed factors such as whether an employer failed to monitor the workplace for sexual harassment, respond to complaints, provide a system to register complaints, or effectively discouraged employees from filing them. “Courts have also largely ignored factors set forth in Vance that articulate whether an employer may have been negligent in preventing coworker harassment,” it says.
Another, broader solution would be for Congress to take action. It could simply pass a law that clarifies who counts as a supervisor and includes those who don’t necessarily hire and fire, but still direct employees’ work. In her dissent in Vance, Supreme Court Justice Ruth Bader Ginsburg even called on lawmakers to do just that. Some members of Congress took her up on the suggestion, introducing the Fair Employment Protection Act, which would broaden the definition of supervisor for the purposes of harassment cases. It was referred to committee on March 13, the day it was introduced, and hasn’t progressed, enjoying a 0 percent chance of being enacted according to Govtrack.us.
It’s in the pipeline that we’re seeing the biggest impact.
Cases will keep getting dismissed without any remedy. But the impact is wider than even that. These cases can still be settled, but even those will feel Vance’s reach. “In any kind of settlement or mediation posture, you make your case based on what everyone knows the law to be,” said Michelle Caiola, interim legal director at Equal Rights Advocates. Current law recognizes Vance’s definition of who counts as a supervisor, which will still be the basis for settlement negotiations. “You’re still operating under the same law,” she said. “So that’s going to effect the value” of what victims recover.
It could also very well reduce the number of claims that are even brought in the first place. “Theoretically it certainly could affect an attorney’s decision on whether they would want to take that case or not if they thought it’s a more difficult case to prove,” she said. The high standard of coworker harassment might dissuade them from getting on board.
The EEOC’s Lopez agrees. “It’s in the pipeline that we’re seeing the biggest impact,” he said. He’s heard anecdotally that lawyers are becoming more reluctant to take these cases on across the country given that Vance makes it more difficult to determine whether the case will hold up to the new definitions. “It’s a sort of funnel that’s been narrowed,” he added.
And victims themselves may be left in a murky area when deciding whether to take action. “It’s really difficult for employees who are bringing claims, that lack of certainty and predictability about what the law means,” Watson said. “That’s what we’re seeing in the post-Vance landscape.”