Jean-Christian Vinel on The Irony of Vance v. Ball State University

In this post, Jean-Christian Vinel, author of the forthcoming The Employee: A Political History, reflects on the last week's United States Supreme Court ruling on Vance v. Ball State University.

The Irony of Vance v. Ball State University

Who’s the boss? To anyone who has followed American labor law in the last fifteen years or so, the recent decision of the Supreme Court in Vance v. Ball State University is full of irony. Indeed, the Court’s new, narrow definition of “supervisor” does not simply limit the liability of companies in discrimination cases. It also stands in stark contrast to the much broader definition that conservatives have pushed in the context of the National Labor Relations Act, where the designation “supervisor” can be used to bar workers from unionizing. And this discrepancy in turn reveals the strong cultural domination of business values on American society.

Consider the case of Mattea Vance. A catering worker—and the only African American in her department—Vance filed a complaint with the Equal Employment Opportunity Commission in 2006 for racial harassment. She alleged that her employer, Ball State University, was responsible for the discrimination she endured because one of the harassers was her supervisor. This allegation was central to Vance’s hopes for redress because the Supreme Court had previously ruled that when discrimination is perpetrated by a co-worker, an employer is only responsible if it has been negligent in dealing with the discrimination. By contrast, under the principles of agency law, a company is liable for a supervisor’s offensive conduct even if there was no negligence on its part. At stake in this case was thus the crucial question of who qualifies as a “supervisor.”

The Supreme Court’s 5-4 ruling, announced June 24, was a victory for business conservatives, who fretted at the possible consequences of the case. Finding against Vance, the Court held that in the context of Title VII of the Civil Rights Act, only workers who can take “tangible employment decisions” against a victim’s working conditions really qualify as supervisors, that is, workers vested with the power to “effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities.” The Court ruled that the employee whom Vance identified as her supervisor was not one for the purposes of the law against racial discrimination because her responsibilities were too limited. As Justice Ruth Bader Ginsburg noted in her dissent, this ruling may well make it harder for workers to fight discrimination in the workplace.

This stunningly narrow definition of “supervisor” cannot easily be reconciled with the one that corporate America and conservatives have long advocated in the context of the National Labor Relations Act. There the meaning of “supervisor” is every bit as important (as it is in Title VII of the Civil Rights Act), because it is used to determine which workers are allowed to join unions. As I explain in my forthcoming The Employee: A Political History, this exclusion of supervisors from the NLRA harkens back to the Taft-Hartley Act of 1947, when Congress, bowing to business pressure, agreed to deprive foremen of collective bargaining rights. Foremen did not have the right to hire or fire or even to promote rank-and-file workers, but corporate America still managed to impress members of Congress with the idea that in many cases, the right to organize is incompatible with the faithful performance of duty. Since then, the protection of the right to organize has been structured by a fundamental tension between freedom of association and loyalty. Indeed, businessmen, top-rank managers, and conservative judges have consistently sought the broadest possible definition for the term “supervisor”—exactly the opposite of what the conservative majority did in Vance v. Ball State University.

This effort led directly to the 2006 Kentucky River cases, which thus serve as an interesting counterpoint to the Vance case. In these decisions, the conservative majority of the National Labor Relations Board, following a Supreme Court ruling, adopted a very broad definition of “supervisor” that threatened to exclude millions from the right to organize. For the purposes of the NLRA, the board ruled, employees who use mere “independent judgment” to “responsibly direct” other employees and “assign” tasks all belong in the supervisory category. The workers whose right to join a union was at stake in these cases were registered nurses, but they were only the latest group to bear the brunt of the conservative assault on the right to organize. “In order to run effectively, a company needs the undivided loyalty of its management,” the Heritage Foundation wrote in support of the decision, summarizing decades of struggles in which “supervisors” were not simply barred from joining unions, but also used as anti-union weapons.

Today, the Kentucky River controversy has receded, largely because the labor movement is in a parlous state outside the public sector and does not have the means to wage an uphill legal and legislative battle. Yet it is worth pointing out the contrast between the two legal disputes and how conservatives approached them. In Vance, Justice Samuel Alito argued that the narrow definition imposed by the Court was in actually in keeping with the contemporary workplace. “Particularly in modern organizations that have abandoned a hierarchical structure of management, it is common for employees to have overlapping authority with respect to the assignment of work tasks,” the Court counseled. Again, there is more than a hint of irony in this logic, for over the past forty years, the Court has repeatedly castigated the NLRB precisely because its progressive members were trying to adapt the framework of the NLRA to the evolution of the workplace and protect professional workers. In fact, the definition of “supervisor” in labor law was largely debated by the Dunlop Commission in the mid-1990s, with even the American Civil Liberties Union suggesting that unless a new standard was adopted many workers would be excluded from collective bargaining. Conservative judges have dismissed this argument, however, pushing instead for an ever-narrower definition.

Clearly, the Civil Rights Act and the NLRA are two vastly different legal contexts and should not be confused. Still, it seems that whatever the legal venue, conservatives have managed to leave a deep imprint on the law. Tracing the social, political, and legal history of terms such as “supervisor,” one gets a glimpse of the ways and means this cultural force has dominated struggles over workplace democracy and justice.

Jean-Christian Vinel teaches American history at Université Paris-Diderot. His book, The Employee: A Political History, examines how American businesses dominated and influenced labor law as they pushed for an ever-narrower definition of "employee" and maneuvered to exclude workers from the right to organize.

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