Part 2 of 2: Supreme Court Rules That "Supervisors" Under Title VII Must Have Power to Take Tangible Employment Actions

by Stoel Rives LLP
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On Monday, we blogged about the first of two recent U.S. Supreme Court decisions interpreting Title VII of the Civil Rights Act of 1964 (“Title VII”), University of Texas Southwestern Medical Center v. Nassar.  Today, we’ll discuss the second decision, Vance v. Ball State University, which addressed who is a “supervisor” for vicarious liability purposes under Title VII.  The decision provides clarity in a previously muddled area of law, and has important implications for employer liability for workplace harassment under Title VII.

As you probably know, Title VII prohibits discrimination in employment based on an individual’s race, color, religion, sex, or national origin, and similarly prohibits harassment resulting in a hostile work environment based on these characteristics.  The plaintiff in Vance was a catering assistant who filed a lawsuit claiming that she had been subjected to a racially hostile work environment at the hands of a catering specialist in her department.  Although the parties disagreed about whether the specialist was a supervisor, they did agree that she lacked authority to hire, fire, demote, promote, transfer or discipline the plaintiff.  The district (trial) court found that without this authority, the specialist was not a supervisor for whose actions the employer could be vicariously liable under Title VII.

But wait, you might be asking—why would supervisory status matter in the first place?  In short, it matters a lot.  An employer’s liability for unlawful harassment that creates a hostile work environment often depends on whether the harassing employee is a supervisor.  If the harassing employee is not a supervisor, the employer is liable for his or her conduct only if the employer was negligent about the offensive behavior.  In other words, if an employee is harassed by a co-worker or a non-supervisor, the employer is only responsible for the resulting hostile work environment if the employer knew or should have known about the harassment and failed to address it. 

An employer’s liability for a supervisor’s actions, on the other hand, is much broader.  There, the employer is automatically vicariously liable if: (1) the supervisor takes a “tangible employment action,” which includes actions such as hiring, firing, demoting, or significantly changing benefits; or (2) the supervisor does not take a tangible employment action, but the employer is unable to establish an affirmative defense to liability.  Employers can establish an affirmative defense by showing that (1) they exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the alleged harassment victim failed to take advantage of any preventative or corrective opportunities that were provided.  (This defense is commonly known as the Faragher/Ellerth defense, named after two Supreme Court decisions from the late 1990s.) 

 

Turning back to Vance, the Supreme Court ultimately agreed with the district court and found that a supervisor under Title VII must have the power to take “tangible employment actions” against the alleged victim. If the alleged harasser does not have such authority, the employer is not vicariously liable, and the victim must show that the employer was negligent in handling the situation, i.e., that it knew about the harassment and did nothing to stop it.

 

Practically speaking, what does this mean for employers? As an initial matter, it is unclear how the reasoning in Vance will be applied to other anti-discrimination statutes, such as ORS chapter 659A (Oregon’s Title VII equivalent). Given that chapter 659A is similar to Title VII, however, and that Oregon courts often look to Title VII cases for guidance, Vance will serve at the least as persuasive authority in cases where only state law claims are asserted. 

 

If Vance applies, an employer has a good chance of escaping liability if the alleged harasser cannot hire, fire, discipline, demote, or take similar action against the victim—so long as the employer can show that it had no knowledge of the harassment or that it reasonably responded to any incidents it was aware of.  Vance also provides a clear standard as to who is a supervisor, making it more likely that questions concerning the alleged harasser’s status (and the employer’s vicarious liability) will be resolved as a matter of law before the case gets to trial.  What the case does not mean is that an employer can never be liable for the actions of its lower-level employees (or that victims are without recourse unless their harasser is a supervisor).  If the employer is negligent, a harassment victim will still have a cause of action against the employer. 

With Vance in mind, employers should review job descriptions to ensure that they accurately reflect employees’ responsibilities, distinguishing those who have the power to hire, fire, etc. from those who merely control the day-to-day schedules or assignments of others.  Employers are further advised, as always, to provide comprehensive harassment and discrimination training to employees (including supervisors), and to respond promptly if there is any indication that unlawful conduct is occurring in the workplace.

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