50 for 50: Five Decades of the Most Important Discrimination Law Developments - Number 38: The Supreme Court Defines “Supervisor” for Employer Liability


In hostile environment harassment cases under Title VII, an employer’s liability for the conduct of its employees depends on whether a supervisor or an individual contributor commits the wrongful acts.  If a supervisor engages in the wrongful conduct, then in most cases the employer is liable for that conduct.  However, if  a co-worker (non-supervisor) harasses the complainant, then the employer is only liable if it knew or reasonably should have known about the conduct and failed to stop it.  Consequently, the definition of “supervisor” is very important in determining who will potentially create liability for the employer. 

The United States Supreme Court in 2013 decided the issue favorably for employers.  In Vance v. Ball State University, 570 U.S. ____ (2013), the Court held that a supervisor is someone who has the authority to take tangible employment action against the complainant.  A tangible employment action is one that creates a significant change in employment status, such as hiring, firing, failing to promote, reassignment with a significant change in job responsibilities or a decision that causes a significant change in benefits.  The Court rejected the EEOC’s position advocating for the use of a broader definition.  The Court’s definition of supervisor did not include co-workers who control scheduling or assignments of others, a standard unsuccessfully  argued by the EEOC.  This decision was viewed as a positive one for employers because it limited the scope of who would be defined as a supervisor and offered more certainty in the analysis.

This standard applies to Title VII cases, but employers should be mindful of state law differences.  For example, in California the definition of “supervisor” is much broader than the Title VII definition under Vance and includes individuals who direct the work of others.  California’s Government Code section 12926(s) defines supervisor as “any individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”  Therefore, employment cases brought under the California Fair Employment and Housing Act have a broader group of employees defined as supervisors in comparison to an action brought under Title VII, which expands the risk of employer liability.


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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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