Who's the Boss? In Vance, Supreme Court Defines "Supervisor" for Purposes of Title VII Harassment Claims

by Holland & Knight LLP

Since two landmark U.S. Supreme Court decisions in 1998, the courts have applied different rules to sexual and other discriminatory harassment claims under Title VII of the Civil Rights Act of 1964 ("Title VII") based on whether the harasser is a supervisor or a co-worker. It is substantially more difficult for an employer to avoid liability for harassment by a supervisor. But courts have disagreed about when an individual qualifies as a supervisor for this purpose. Some, including the First, Seventh, and Eighth U.S. Circuit Courts of Appeal, have limited "supervisors" to those employees who have the authority to take tangible job actions, such as hiring, firing, demoting, promoting or transferring other employees. But the Second, Fourth, and Ninth Circuits, as well as the Equal Employment Opportunity Commission (EEOC), have ruled that a supervisor is any employee with responsibility for the daily work of other employees.

In a big win for employers, the Supreme Court, by a 5-4 vote, has rejected the EEOC's position and adopted the narrow definition: a supervisor is an employee who has the authority to take tangible job actions. Vance v. Ball State University, No. 11-556 (June 24, 2013). This decision should make it harder for plaintiffs to prove sexual and other discriminatory harassment claims under Title VII.

Legal Background

Under Title VII, an employer’s liability for workplace harassment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent, that is, if it "knew or should have known" about the harassment but failed to take prompt and appropriate action to stop the harassment. But in cases in which the harasser is a "supervisor," different rules apply. If the supervisor’s harassment culminates in a tangible employment action (i.e., "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits"), the employer is strictly liable and has no defense.

If no tangible employment action is taken, an employer generally is still "vicariously liable" for the supervisor's harassment, but may escape liability by showing that: (1) the employer exercised reasonable care to prevent and correct any harassing behavior, and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. It is easier for a plaintiff to prove, and harder for an employer to escape liability for, harassment by a supervisor.

The Dispute

Maetta Vance, an African American woman, sued her employer, Ball State University (BSU), alleging that a fellow employee, Saundra Davis, created a racially hostile work environment in violation of Ti­tle VII. The district court granted summary judgment to BSU. It held that BSU was not vicariously liable for Davis’ alleged actions be­cause Davis, who could not take tangible employment actions against Ms. Vance, was not a supervisor. The Seventh Circuit agreed that only those employees who can take tangible employment actions are supervisors and agreed that Davis lacked such authority.

Supreme Court Decision

In Vance, the Supreme Court adopted the Seventh Circuit approach: under Title VII, a "supervisor" is an employee with the power to take "tangible employment actions" against another employee, i.e., actions that cause a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Thus, an employee who merely has the authority to direct other employees' daily work is not a supervisor under Title VII and an employer will not be held vicariously liable for harassment by such an employee. By restricting who counts as a "supervisor," the Court has handed employers a significant victory and much needed clarity.

Practical Ramifications

Back when Americans worked in factories, mills or labored in similarly hierarchical workplaces, the distinction between "supervisors" and coworkers was more clear. In modern workplaces, there are often numerous employees with some amount of authority over what happens during the workday. For example, "leads" and "working forepersons" may control certain aspects of other employees' activities but may not have authority to change employees' tangible job status.

The Vance decision makes it easier for employers to identify the "supervisors" for whom they will be vicariously liable, and will make it harder for plaintiffs to prove their harassment claims. If an employee possesses the authority to take "tangible employment actions" against another employee, he or she is a supervisor for Title VII harassment purposes; if not, he or she is not. This clarity allows employers to identify and more closely train and monitor the conduct of those "supervisors" for whose conduct they will be vicariously liable. It will also make it more difficult for employees to prove harassment claims against those employees who have the authority only to direct other employees' day-to-day activities.

But employers cannot ignore the activities of employees with authority to direct day-to-day activities. The Supreme Court stated that in determining whether an employer was negligent in failing to learn about and stop harassment by such employees, the nature and degree of authority wielded by the harasser will be an important factor in determining negligence.

Employers should use the Vance decision as an opportunity to retrain all employees about the employers' policy prohibiting discriminatory harassment and the procedures to report and remedy allegations of harassment.

To ensure compliance with Treasury Regulations (31 CFR Part 10, §10.35), we inform you that any tax advice contained in this correspondence was not intended or written by us to be used, and cannot be used by you or anyone else, for the purpose of avoiding penalties imposed by the Internal Revenue Code.

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.

© Holland & Knight LLP | Attorney Advertising

Written by:

Holland & Knight LLP

Holland & Knight LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.