On June 24, 2013, the United States Supreme Court decided Vance v. Ball State University, ruling that only those employees who have the authority to take “tangible employment actions” qualify as supervisors for purposes of harassment claims brought under Title VII of the Civil Rights Act of 1964. Since the Supreme Court’s 1998 decisions in Faragher and Ellerth, the applicable standards for evaluating harassment claims have differed depending not only upon the nature of the conduct, but also upon the status of the employee accused of the harassing behavior. Where the alleged harasser is a “supervisor,” the employer is automatically liable for any harassment that results in a tangible employment action (as described below). Even with respect to harassment that does not result in a tangible employment action, an employer can only avoid liability for a supervisor’s harassment if (i) the employer can prove that it took reasonable measures to prevent and correct harassment; and (ii) the employer can also prove that the employee unreasonably failed to take advantage of the employer’s anti-harassment policies and procedures. By contrast, co-worker harassment only exposes an employer to liability if the employee can prove that the employer negligently failed to discover or remedy the harassment. Clearly, the proper definition of “supervisor” is of enormous significance in analyzing an employer’s potential harassment liability under Title VII.
In Vance, the Court held that for purposes of Title VII harassment, the definition of a “supervisor” encompasses only those employees with the authority to make significant changes in the victim-employee’s employment status (i.e., tangible employment actions such as decisions about hiring, firing, promotion, demotion, reassignment to a vastly different position, or benefits changes). This has been the definition of a supervisor used by the Courts of Appeal for the First, Seventh, and Eighth Circuits, which cover Arkansas, Illinois, Indiana, Iowa, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, North Dakota, Rhode Island, South Dakota, and Wisconsin.
The Vance case came to the Supreme Court from the Seventh Circuit where the lower court had applied the narrower definition of a supervisor that the Supreme Court ultimately approved. The Supreme Court rejected a broader definition of “supervisor” that would have included any individual possessing the authority to direct and oversee the harassment victim’s daily work. The United States Equal Employment Opportunity Commission and numerous others had urged the Court to adopt the more expansive definition, but the Supreme Court adopted the narrower standard by a 5-4 majority.
While the Vance decision certainly represents a victory for employers, employers should not assume that this decision allows them to concentrate all significant employment decisions in a few, senior-level positions and thereby avoid potential harassment liability. The question whether an employee functions as a supervisor remains a fact-specific inquiry and depends upon how the employer organizes the workplace. In responding to this precise concern (that employers will concentrate decision-making in order to avoid liability), the Court noted that such senior-level decision-makers would necessarily have to rely on other individuals closer to the employee in order to make effective decisions. In that situation, the Court would likely find that the employer had delegated the power to take tangible employment actions to the employees upon whose recommendation the decision-makers relied. In other words, the senior decision-makers would have made the lower-level employees “supervisors” by virtue of their level of involvement in the decision. In its 2011 decision in Staub v. Proctor Hospital, the Court previously endorsed a version of this “cat’s paw” theory, ruling that an employer can, in certain circumstances, become liable for employment discrimination based upon the unlawful bias of those who influenced, but did not make, the ultimate employment decision.
The Court decided Vance along familiar 5-4 lines, with Justice Kennedy apparently providing the swing vote for the majority. Justice Alito authored the majority opinion in which Justices Roberts, Scalia, Kennedy, and Thomas joined. Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented. Although Vance provides useful clarification and a definite “win” for employers, it will not likely answer all questions concerning the definition of “supervisor” for purposes of Title VII harassment liability.