“New Supreme Court Ruling: Who is a “Supervisor” in Harassment Cases?”

The U.S. Supreme Court issued Vance v. Ball State University on June 24, 2013, clarifying who is a “supervisor” in harassment cases brought under Title VII.  As explained below, an employer may be strictly liable for the actions of a “supervisor” who can impose a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, a decision causing a significant change in benefits.”

Such a “bright line” test will give employers a clear standard of who is a supervisor and is an improvement over the EEOC’s recommended Guidance. It should make it easier in many fact scenarios to obtain a summary judgment based on “supervisor” status.

Title VII protects employees against workplace discrimination. In 1986, the Supreme Court first extended this workplace discrimination protection beyond terminations, discipline, etc. to include harassing behavior as well.

In 1988, the Supreme Court issued two cases [Ellerth and Farragher], setting the rules for harassment liability: (i) where a co-worker creates the hostile environment, the employer can be liable only if it knew or reasonably should have known about the harassment and failed to stop it; (ii) where a supervisor is the harasser and the employee suffers a tangible adverse employment action, the employer will be strictly liable; and, (iii) in cases where a supervisor is the harasser but no tangible adverse employment action occurred, there is no strict liability for the employer. In this situation, an employer can escape liability  if it can prove it exercised reasonable care to prevent and correct harassing behavior, and the employee unreasonably failed to avoid harm by not reporting the harassment.

While this was helpful to employers, it did not include a clear definition of who was a “supervisor” for applying the three rules.

The Supreme Court in Vance declares that an employee is a “supervisor and the employer is strictly liable for that employee’s harassment of another only if the employee has the authority to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, a decision causing a significant change in benefits.’”

The Court rejected the EEOC Enforcement Guidance that “supervisor” can be “someone who either has the authority to undertake or recommend tangible employment decisions affecting the employee or has the authority to direct the employee’s daily work activities.”

Employers should re-examine the job titles for “supervisors” and clarify who has power to hire, fire, etc. Make sure that non-supervisors are not signing disciplinary paperwork, etc.. It will also help to clearly inform employees who experience a significant change in employment status, the exact identity of the supervisor(s) who made each such decision. This will clarify that the employee can no longer identify his/her “lead person” or the most senior worker on the shift in a department as a “supervisor” for purposes of the three tests for harassment liability.

By Don Benson, Esq