Who is a supervisor for purposes of vicarious liability under Title VII harassment claims? Only employees who are empowered by the employer to take “tangible employment actions” against the victim, according to the United States Supreme Court in the recent case Vance v. Ball State University. This determination eases disputes as to who constitutes a supervisor under Title VII harassment claims. According to the Supreme Court, employees are supervisors only if they can take “tangible employment actions” against the harassed victim. “Tangible employment actions” are defined as significant changes in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or decisions causing a significant change in benefits.
The status of a harasser as either a co-worker or supervisor of the victim can greatly affect the potential liability of employers under Title VII for workplace harassment. This potential liability, as established in the Faragher/Ellerth Supreme Court decisions, is broken down as follows:
· Co-worker Harassment – If the harassing employee is the victim’s co-worker, the employer is only liable if the employer was negligent in failing to prevent the harassment from taking place.
· Supervisor Harassment – If the harassing employee is the victim’s supervisor, liability will depend on whether the harassment caused a tangible employment action, which 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.
– Supervisor & Tangible Employment Action – If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable.
– Supervisor & No Tangible Employment Action – If no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior; and, (2) that the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided.
In the recent case Vance v. Ball State University, Maetta Vance, an African-American woman, brought an action against her employer Ball State University (“BSU”), alleging that she was racially harassed by Saundra Davis, a Caucasian woman, whom she considered to be her supervisor. Vance complained that Davis “gave her a hard time at work by glaring at her, slamming pots and pans around her, and intimidating her,” among other things. The district court and circuit court of appeals below found that the employer, BSU, could not be held vicariously liable for the alleged racial harassment because Davis was not a supervisor because she could not “hire, fire, demote, promote, transfer, or discipline” Vance. The lower courts further found that BSU was not negligent as it responded reasonably to the incidents of alleged harassment of which it was aware.
The United States Supreme Court reviewed the decision and ultimately defined “supervisor” for purposes of vicarious liability under Title VII. Prior to this decision, the circuit courts were split as to the definition of a “supervisor” under Title VII. The EEOC and some circuits took the more open position that an employee is a supervisor if he or she wielded authority “of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment.” The other circuits took the position that an employee is a supervisor only if he or she could take tangible employment actions against the victim. The Supreme Court sided with this latter view and held that an employee is a “supervisor” for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim.
The Supreme Court found that the EEOC’s guidance was unmanageable and risked the danger of juror confusion. The Court also dismissed an argument that employers could attempt to limit their liability and confine decision-making power to a small number of individuals. The Court stated that these few individuals will likely rely on other workers who actually interact with the affected employee and that under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies. The Court ultimately concluded that under the facts presented in the Vance case, because the alleged harasser did not have authority to take any tangible employment actions against Vance, she was not considered a supervisor under Title VII, and affirmed the courts below.
What this decision means for employers. This decision provides some clarity for employers. It makes it easier for employers to identify who is a “supervisor” for purposes of Title VII harassment claims for whom it will be vicariously liable. An employee is a supervisor for purposes of Title VII harassment claims if he or she can take tangible employment actions. If he or she cannot take such actions, he or she is not a supervisor. However, keep in mind that the Supreme Court left open the possibility that employees making recommendations about other employees’ employment may be considered supervisors if such recommendations are relied upon by the employer. Employers should also remember that just because an employee is not found to be a supervisor, it is not shielded from liability as it could still be found to be negligent in failing to prevent the harassment from taking place.
Employers should use this decision as an opportunity to identify and more closely train and monitor the conduct of “supervisors” and review its harassment policy and procedures with its entire workforce. It is also important to note that this definition of “supervisors” is limited to Title VII harassment claims and may not apply to other laws, including the FLSA and the NLRA.