Employers need to keep an eye on the pending U.S. Supreme Court decision of Vance v. Ball State University where the “supervisor” rule establishing vicarious liability for harassment claims under Title VII likely will be expanded or contracted. Vance involves an employee’s claim that her employer was vicariously liable for the harassing acts of a fellow employee who the employee herself regarded a “supervisor,” but who did not have actual power to “fire, hire, or promote” her.
The distinction between a “co-worker” and a “supervisor” is critical. Under the long-established Supreme Court Faragher and Ellerth rules for determining employer liability for the harassing acts of another employee, only a supervisor’s actions can give rise to vicarious liability for an employer (i.e., automatic liability with limited defenses). In contrast, a co-worker’s actions require proof of negligence by the employer in order for there to be employer liability (i.e., knowledge and failure to take remedial action – a much more difficult standard of proof and subject to easier defenses). The EEOC and many courts are not of like mind in the definition of “supervisor” with many courts requiring “fire, hire and promote” authority for a supervisor and the EEOC taking a more expansive and subjective definition. Vance will likely settle the question.
A good summary of the case and the oral argument at the Supreme Court, heard on November 26, 2012, is on the NPR website.
What does this mean for employers? If the Vance decision adopts the more expansive definition of “supervisor” advanced by the EEOC, there likely will be greater vicarious liability exposure for employers encompassing the actions of employees who have some supervisory authority, but are without the power to “fire, hire, or promote.” If the Court adopts a narrower definition and limits supervisor liability to something closer to the “fire, hire, or promote” rule, it will be particularly important for employers to be sure that in their organizational charts and job descriptions the authority to “fire, hire, or promote” is clearly and accurately demarcated in order to limit exposure for vicarious liability.
Takeaway: Once the Vance decision comes down, employers should work with legal counsel to accommodate any changes it brings to the world of employer liability.