Legal Alerts

U.S. Supreme Court Narrowly Defines “Supervisor” for Purposes of Title VII Vicarious Liability

On June 24, 2013, the U.S. Supreme Court issued an important decision for employers by narrowing the circumstances under which employers can be held vicariously liable for hostile environment harassment by a supervisor under Title VII of the 1964 Civil Rights Act (“Title VII”). In Vance v. Ball State University, the Court rejected a plaintiff-employee’s contention that a supervisor includes anyone with the authority to direct her daily work activities, and held that a supervisor must be empowered by the employer to take “tangible employment actions,” such as hiring, firing, failing to promote, reassignment with significant different responsibilities, or a decision causing a significant change in benefits.

Background on Employer Liability for Hostile Environment Harassment Under Title VII

Under Title VII, the standard for an employer’s liability for hostile environment harassment differs depending on whether the harassing employee is a co-worker or a supervisor of the plaintiff. If the harassing employee is a co-worker of the plaintiff, the employer is liable only if the employer was negligent in controlling working conditions. Faragher v. Boca Raton, 524 U.S. 775 (1998).

Different rules apply if the harassing employee is the plaintiff’s “supervisor.” In these instances, the employer may be vicariously liable for unlawful harassment. The employer is strictly liable for a supervisor’s harassment if the unlawful conduct culminates in a “tangible employment action,” i.e., “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.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). If no tangible employment action is taken, the employer may avoid liability for a supervisor’s harassment by proving: (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided. Faragher v. Boca Raton, 524 U.S. 775 (1998).

The issue considered by the U.S. Supreme Court in Vance is who counts as a “supervisor” for purposes of Title VII vicarious liability for a supervisor’s harassment.

Vance v. Ball State University, et al.

In Vance, the plaintiff, an African-American woman employed by Ball State University (“BSU”), alleged that a fellow employee created a racially hostile work environment in violation of Title VII. The trial court granted summary judgment in favor of the employer, holding that BSU was not vicariously liable for the employee’s alleged harassing actions because she could not take tangible employment actions against the plaintiff and was not her supervisor. The Seventh Circuit Court of Appeals affirmed.

Before the Supreme Court, the plaintiff urged the Court to broadly define a supervisor as a person with the authority to direct and oversee her daily work activities. The employer, on the other hand, argued that a supervisor must have the authority to take a tangible employment action, such as the power to hire, fire, demote, promote, transfer, or discipline the employee.

In a narrow five-to-four decision, the U.S. Supreme Court adopted the rule proposed by the employer, that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take “tangible employment actions” against the plaintiff, i.e., to effect a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significant different responsibilities, or a decision causing a significant change in benefits.”

As such, the Court found that BSU was not vicariously liable because the plaintiff did not show that the person who harassed her was a supervisor under the Court’s definition.

Differing Standard for “Supervisor” Under California FEHA

California employers should be aware that the California Fair Employment and Housing Act (“FEHA”) defines a “supervisor” more broadly than its federal counterpart. Under Government Code section 12926(s), a “supervisor” is an individual with the authority to hire, fire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them. Thus, a person with the responsibility to direct an employee’s daily work activities could be a supervisor under the FEHA even if he or she lacks the authority to hire, fire, promote, or transfer the employee. Chapman v. Enos, 116 Cal.App.4th 920 (Ct.App. 2004).

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