The issue of who qualifies as a "supervisor" for purposes of vicarious liability under Title VII has remained an unanswered question since the 1998 United States Supreme Court decisions in Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton. In those cases, the Court established that an employer's liability for workplace harassment depended on whether the harassing employee was a "supervisor." However, the Court left open the question of who qualifies as a "supervisor" for purposes of this analysis. On June 24, 2013, the Court, in Vance v. Ball State University, 570 U.S. ____ (2013), answered that question. In Vance, the Court held that an employee is a "supervisor" for purposes of vicarious liability under Title VII, only if the employee is empowered to take tangible employment actions against the alleged victim. Therefore, all companies need to examine and possibly redraft their job descriptions to fall within the parameters of this new decision.

In 1998, Ellerth and Faragher established that an employer's liability for workplace harassment may depend on the status of the harasser. If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions. However, if the harassing employee is a "supervisor," different rules apply. In that situation, if the supervisor's harassment results in a tangible employment action (i.e., "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"), the employer is strictly liable for the harassment. But if no tangible employment action is taken, the employer may escape liability by proving an affirmative defense that (1) the employer exercised reasonable care to prevent and correct the harassing behavior and (2) that the victim unreasonably failed to take advantage of preventive of corrective opportunities that the employer offered.

In Vance, the plaintiff was an African-American woman working for Ball State University. Vance made complaints of racial discrimination and retaliation by a fellow employee, Sanundra Davis. She also filed various complaints with the EEOC alleging, among other things, that Davis "gave her a hard time at work by glaring at her, slamming pots and pans around her, and intimidating her." Vance alleged that these issues persisted despite Ball State University's attempts to address the problem. As a result of the continuing issues, Vance filed a lawsuit against Ball State University alleging that she has been subject to a hostile work environment in violation of Title VII. Although the parties debated the exact scope of Davis' duties, it was undisputed that Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. Because it was undisputed that Davis could not take tangible employment actions against Vance, the United States District Court found in favor of Ball State University. The Seventh Circuit Court of Appeals affirmed this decision based on its precedent that an employee only qualifies as a supervisor if the employee has the power to hire, fire, demote, promote, transfer or discharge the victim.

The United States Supreme Court affirmed the Seventh Circuit. In reaching this conclusion, the Court rejected the EEOC's position that a supervisor must only wield authority "of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment." Rather, the Court adopted the Seventh Circuit's definition of "supervisor" for purposes of determining vicarious liability under Title VII as an employee that has the authority to take tangible employment actions against the victim of the alleged harassment.

The Vance decision provides a substantial benefit to employers for a number of reasons. First, Vance provides a bright-line test for supervisory status that can be readily applied. This test allows all parties to determine an alleged harasser's status before, or at least shortly after, litigation commences. Second, because the Court adopted a bright-line rule, the issue of whether the alleged harasser is a "supervisor" will likely be determined prior to trial. Third, the definition of "supervisor" adopted in Vance narrows the number of employees that potentially subject the employer to vicarious liability for the harassing employee's actions. Therefore, all employers should, as a first step, analyze their job descriptions and determine whom they are identifying as supervisors and redraft the language where appropriate.