In workplace harassment lawsuits brought under Title VII of the Civil Rights Act of 1964, employers face a considerably greater exposure to liability for harassing acts committed by supervisors than they do for harassment committed by rank-and-file employees. Drawing the line between supervisors and co-workers is not always easy, however, and different courts have applied different tests for determining whether an employee qualifies as a supervisor for Title VII purposes. Those differences have now been resolved. On June 24, 2013, a sharply divided U.S. Supreme Court set out a clear test for identifying supervisors in discriminatory harassment cases, ruling in Vance v. Ball State University that an employee is a "supervisor" if he or she has the power, as set by the employer, to take "tangible employment actions" (such as discharge, promotion, or discipline) against the employee claiming harassment.
Whether an employee engaging in workplace harassment based on race, sex, or other protected categories is a supervisor or a mere co-worker makes a big difference in determining whether the employer can be held liable for the harassment. An employer will be strictly liable for the harassing conduct of a supervisor, regardless of whether a plaintiff is able to show that the employer was aware of the harassment, if the harassment culminated in a "tangible employment action," such as a termination or reassignment. If the harassment did not culminate in a tangible employment action (for example, a "hostile environment" claim), the employer will be liable for a supervisor's acts unless the employer can establish that it exercised reasonable care to prevent and correct any harassing behavior and the plaintiff unreasonably failed to take advantage of the opportunities that the employer provided. Attributing the wrongdoing of a supervisor to the employer for liability purposes in these situations is called "vicarious liability." Employers are not vicariously liable for the harassing acts of a nonsupervisory employee, however. If the harasser is not a supervisor, the employer will be liable for the harassment only if it was negligent in controlling workplace conditions – in other words, the employer's own action or inaction is the basis for the liability.
The Court's Decision in Vance v. Ball State University
In Vance v. Ball State University, Maetta Vance, an African-American catering assistant, filed suit against her employer, alleging that a fellow employee, Saundra Davis, created a racially hostile work environment for Vance by purposely intimidating Vance. Vance alleged that Davis was her supervisor, and thus the employer should be held vicariously liable for the harassment. The parties did not dispute that Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. However, Vance argued that Davis directed some of her work and thus was her supervisor for the purpose of Title VII vicarious liability. The trial court hearing this case ruled in favor the employer, holding that Davis was not Vance's supervisor because she could not "hire, fire, demote, promote, transfer, or discipline" Vance. The U.S. Court of Appeals for the Seventh Circuit affirmed, and the U.S. Supreme Court agreed to hear the case to resolve a split among the lower courts as to the correct criteria to apply in determining whether an employee is a supervisor under Title VII.
The Supreme Court was urged to take the expansive view of the term "supervisor" applied by the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII. The EEOC tied supervisory status to the ability to exercise significant direction over another employee's daily work. The Court, however, called the EEOC's definition "nebulous" and affirmed the Seventh Circuit's ruling in favor of the employer. The Court reasoned that its previous rulings dealing with vicarious liability for harassment by supervisors contemplated that supervisors were those employees who had "the authority to make tangible employment decisions" because only supervisors can cause "direct economic harm" to the employee claiming harassment. Thus, supervisor status must be dictated by whether the harassing employee can inflict economic injury. The Court noted that this workable framework for identifying a supervisor under Title VII can often be applied in the early stages of litigation. Thus, it may contribute to some cases being resolved before going to trial.
Practical Implications
The Supreme Court's test for identifying supervisors under Title VII – does the employee have the employer-delegated authority to take tangible employment actions against the complaining employee – significantly narrows the scope of who may qualify as a supervisor in harassment cases. Team leads, foremen, and assistant supervisors who direct the work of other employees but do not have the authority to change their employment status or the terms of their employment are not supervisors, and plaintiffs who allege that such employees harassed them must satisfy the difficult burden of proving that the employer negligently managed the workplace.
In most instances, it should be fairly easy to establish in the early stages of litigation whether the alleged harasser is a supervisor, thereby establishing up-front what the plaintiff must prove to impose harassment liability on the employer. To facilitate the determination of supervisor status, employers should specify in the job descriptions for supervisory positions that the employees holding those positions have the authority to hire, fire, promote, demote, transfer, and make compensation decisions. In job descriptions for quasi-supervisory positions that do not have such authority, the employer should expressly state that employees holding those positions do not have the power to hire, fire, etc.
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