On June 24, 2013, the U.S. Supreme Court issued a long awaited decision in Vance v. Ball State University defining what it means to be a “supervisor” in the context of unlawful harassment claims. As we have previously reported on multiple occasions, the question of what it means to be a supervisor under the law is a crucial issue: different rules apply to determine if an employer is automatically liable for harassment by one of its employees depending upon whether the alleged harasser is or is not a supervisor.

In the recent decision, the Supreme Court concluded that a supervisor is someone whom the employer has empowered to take “tangible employment action” against the complaining employee. Referring to its prior decisions, the Court described a tangible employment action as “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.” In making this ruling, the Court rejected as too broad and vague the standard urged by the employee and up until now used by the Equal Employment Opportunity Commission: that a supervisor can be anyone who directs another employee’s work tasks.

By narrowing the definition of “supervisor,” the Supreme Court clarified the framework for analyzing an employer’s potential exposure for unlawful harassment by an employee. If the alleged harasser is a supervisor and the victim suffered a “significant change in employment status” such as being fired, demoted, or reassigned to significantly different duties, the employer will be liable for the supervisor’s harassment. However, if no tangible employment action was taken, the employer can avoid liability despite the supervisor’s harassment by proving that it had effective anti-harassment policies and complaint procedures in place and that the harassed worker failed to follow them. If the alleged harasser is not a supervisor, the employer will only be held liable if it was negligent in preventing the harassment, such as if the employer was aware of a prior instance of harassment by the same employee and failed to prevent his or her further harassment. This decision is therefore very important for employers.

Nevertheless, there may remain a few open issues, such as what “significantly different responsibilities” means with respect to the tangible employment action standard. The Supreme Court also did not expressly rule out that harassment by others besides someone specifically authorized to fire and promote could cause automatic liability for the employer. The Court instead noted that if the decision makers rely on other workers for significant input before taking tangible employment actions, the employer may have “effectively delegated” the power to take those actions to the employees whose recommendations the employer relies on.

What does the Vance decision mean for your organization? In light of the case, you may want to consider taking the following actions:

  1. Evaluate and clarify (or create) written job descriptions for employees whom you intend to have authority to hire, fire, promote and to take other tangible employment actions. Do the same for other employees who will have some limited supervisory authority, such as to assign work duties, but who will not be empowered to make greater decisions. For example, the Vance decision suggests that deciding who a supervisor is should be easily determined by written documentation. Make sure that you have it.
  2. Review and update your anti-harassment, EEO, and anti-retaliation policies. Make sure that supervisors receive regular and appropriate training about your anti-harassment, EEO, and anti-retaliation policies, the complaint process, and how they should respond to complaints.
  3. Make sure that your anti-harassment, EEO, and anti-retaliation policies are clearly and regularly communicated to the workforce, including to have employees acknowledge in writing that they have reviewed them.
  4. Investigate workplace complaints thoroughly and take appropriate corrective action if needed.