TBA Law Blog

Posted by: Christy Gibson on Jul 23, 2013

By Jonathan Harris*

Providing a significant win for employers, the Supreme Court, in Vance v. Ball State University, No. 11–556 (June 24, 2013), provided much-needed clarity on who is and is not a “supervisor” under Title VII.  This is a key distinction in harassment cases.  If the harasser is a supervisor, the employer is liable for his or her harassment unless it can prove the affirmative defense of Burlington Industries, Inc., v.  Ellerth —i.e., the employer made reasonable efforts to prevent harassment in the workplace, and the plaintiff unreasonably failed to take advantage of the avenues available for reporting harassment.  While the EEOC urged the adoption of a nebulous “standard” with a multitude of factors (a standard that the agency could mold to suits its needs depending on the case, rather than giving employers clear guidance), the Court rejected that standard as unworkable and unfair.  Instead, only those with the power to “hire, fire, demote, promote, transfer or discipline” an employee constitute a supervisor, so held the Court.

This case was brought by Maetta Vance, who alleged she was the victim of a racially hostile work environment while employed at Ball State University. The Supreme Court decided to hear the case to clarify the “supervisor” liability rule that it had established in 1998 in the twin cases of Faragher v. City of Boca Raton and Ellerth.  According to those cases, an employer may be held vicariously liable for harassment under Title VII if the harasser is the plaintiff’s supervisor.

With Justice Alito writing for the majority in a 5-to-4 decision, the Supreme Court ruled an employee is a “supervisor” for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim. The Court ruled the Ellerth/Faragher framework presupposes a distinction between supervisors and coworkers in which the ability to make tangible employment decisions is the defining characteristic of supervisors.  In so finding, the Court rejected the “expansive,” “nebulous,” and vague definition of “supervisor” found in the EEOC’s “Enforcement Guidance” and ruled the “ability to direct another employee’s tasks is simply not sufficient” to warrant employer liability.  As Justice Alito stated, under the EEOC’s definition, “supervisor status would very often be murky,” whereas the definition of supervisor adopted by the Court in Vance can be “readily applied” and resolved before trial.

The Supreme Court’s decision is significant for two key reasons.  First, the Supreme Court provided an important clarification of the term “supervisor” for purposes of harassment under Title VII and has limited it to those who have the power to take tangible employment actions—such as hiring, firing, demoting, transferring, and disciplining.  A best practice for employers in utilizing this clarification is to ensure that their job descriptions and delineations of job duties match—making it easy to identify true supervisors from those who do not qualify. 

Second, in providing this clarification, the Supreme Court expressly rejected the EEOC’s amorphous definition of the term supervisor, which, the Court concluded, injected too much ambiguity into the issue. The Court reinforced the importance—for all parties—of having a clear picture of the field on which they are playing before becoming too entrenched in litigation. This bodes well for future challenges to regulations and opinions issued by the EEOC, the U.S. Department of Labor, and other government agencies, which appear to err against clear standards and in favor of ambiguities that require “individualized assessments” of nearly every conceivable employment decision.

As a result of this decision, employers now have uniformity and clarity in deciding which of their employees are supervisors in Title VII hostile work environment claims.  The Court’s standard provides a good opportunity for employers to evaluate which of their employees have the authority to actually create vicarious liability on behalf of the employer, and thus, which particular employees should be targeted for special training and directions regarding not only their conduct, but also their responsibilities for prevention and appropriate action when harassment occurs.

*Jonathan Harris is a shareholder at Ogletree Deakins, a firm of over 430 lawyers that bills itself as the third largest nation-wide labor and employment boutique.  Jon is a graduate of Washington University School of Law.  He is a frequent speaker on employment issues. Jon may be reached at jon.harris@ogletreedeakins.com or (615) 687-2215.