In a 5-4 decision issued June 24, 2013, the U.S. Supreme Court decided what the definition of a “supervisor” is for purposes of assessing liability for unlawful harassment under Title VII. In Vance v. Ball State University, the Court ruled that an employer will be vicariously liable for the actions of a supervisor “when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, a decision causing a significant change in benefits.’” The majority found that this “workable” definition of supervisor will provide much-needed guidance to employers and employees even before litigation begins. In arriving at this conclusion, the Court rejected the broader definition of “supervisor” adopted by the EEOC and several courts of appeal that includes employees authorized to direct another employee’s daily work activities.
While this ruling is welcome news for employers in litigation, as the Court made clear, it does not affect employers’ ongoing obligation to provide a workplace that is free from discriminatory intimidation, ridicule and insult. Employers will still be liable for unlawful harassment under the negligence standard of Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth.
Employers should continue to provide ongoing anti-harassment training to their workforce and additional training to their managers, even if some of those managers may no longer be considered “supervisors” for purposes of assessing liability for harassment, because employers will want to continue to ensure that all managers understand their obligations to prevent and correct any harassing behavior.