When faced with a hostile work environment claim, employers may be vicariously liable for harassment against an employee.  The status of the alleged harasser is key in determining liability.  If the alleged harasser is a co-worker of the plaintiff, the employer will be vicariously liable for the misconduct only if it was negligent in either discovering or remedying the offending behavior.  However, if the alleged harasser is a supervisor, the employer will be vicariously liable for the harassment, and can avoid liability only by proving that it: (1) exercised reasonable care to prevent and correct any harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities.  This defense, known as the Faragher/Ellerth defense, was articulated in the Supreme Court cases Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).  

Although employers may think the definition of "supervisor" is straightforward, there has been a split among the courts as to what a supervisor is.  Some courts narrowly define a supervisor as an individual who has the authority to hire, fire, demote, promote, transfer or discipline an employee.  Other courts broadly define a supervisor as any person with authority to direct an employee's daily activities.  

In Vance, the plaintiff was at one point the only black employee working for Defendant Ball State University's Banquet and Catering Department.  Over several years, Vance had various issues with co-workers and supervisors, but one person did not neatly fit into either category – Saundra Davis.  Davis was allegedly a member of "management," but did not have the power to hire, fire, promote, demote, transfer or discipline employees. However, Davis did have the authority to direct Vance's day-to-day activities, and she was not required to clock in and out like the hourly employees in the department.  Vance claimed that Davis was one of her supervisors and that Ball State should be held liable for Davis’ alleged harassment.  The trial court, applying a narrow definition of a supervisor, disagreed.  The court held that Davis was Vance's co-worker and that Ball State would be liable only if it was negligent in discovering or remedying the offending behavior.  There was no evidence of such negligence, so the court granted Ball State's motion for summary judgment. The Seventh Circuit upheld the decision.

This scenario is just one of many that employers may have without even realizing it. Is the "shift manager" who assigns tasks to employees on her shift a supervisor for purposes of a hostile work environment claim?  What about the assistant "supervisor" who makes schedules, conducts reviews, and recommends promotions and wage increases?  Most employees would say these individuals are supervisors and definitely not co-workers.  But does the layperson's definition of a supervisor apply to a hostile work environment claim?  The Supreme Court is examining this very question and will either apply the narrow definition, the broad definition or, perhaps, a completely new definition of who is a supervisor in hostile work environment claims.