On June 24, in a 5-4 decision, the U.S. Supreme Court decided an
important Title VII case that clarifies the definition of the term
"supervisor" for purposes of liability analysis. In
Vance v. Ball State University, the plaintiff is a black
woman who sued her employer, Ball State University, claiming it
violated Title VII through the actions of another employee who
allegedly created a racially hostile work environment. The central
issue was whether that other employee was a "supervisor"
or a mere "co-worker" for purposes of Title VII.
Pursuant to the Supreme Court's decisions in Faragher v.
Boca Raton, 524 U.S. 775 (1998) and Burlington Industries,
Inc. v. Ellerth, 524 U.S. 742 (1998), if a harassing employee
is simply a co-worker of the victim, the employer is liable only if
it is negligent in controlling or responding to the co-worker's
conduct. If, however, a harassing employee is a
"supervisor," the analysis is different. Specifically, if
a supervisor's harassment culminates in a tangible employment
action, the employer is strictly liable. If a supervisor's
harassment does not culminate in a tangible employment action, the
employer may prove as an affirmative defense that (1) the employer
exercised reasonable care to prevent and correct any harassing
behavior, and (2) the plaintiff unreasonably failed to take
advantage of the available preventive or corrective opportunities
offered by the employer. Faragher and Ellerth
left open the question of who constitutes a "supervisor"
under Title VII.
In Vance, the Supreme Court answers that question by
holding an employee is a "supervisor" for purposes of
imposing liability under Title VII only if he or she is empowered
by the employer to take tangible employment actions against the
complainant, i.e., actions that effect 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." The Court
rejected what it deemed a "nebulous" approach advocated
by the EEOC's Enforcement Guidance, which defined a
"supervisor" as an employee who had authority "of
sufficient magnitude so as to assist the harasser explicitly or
implicitly in carrying out the harassment." The majority
indicated that in contrast to the EEOC Guidance, the Court's
definition of "supervisor" was intended to provide
clarity and trial courts generally should be able to determine
whether an employee is or is not a supervisor based on the
undisputed material facts.
In light of the Vance decision, employers should examine
their classifications of employees and should ensure they are
providing appropriate supervisory training to those employees who
fall under the Supreme Court's definition of a supervisor.
Originally published on the Employer's Law Blog
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