In a resounding victory for employers throughout the nation, the Supreme Court of the United States today narrowed the scope of the term "supervisors" — that is, those individuals for whom employers may be held strictly, and vicariously, liable for allegedly discriminatory actions — drawing a bright line around the term so that it encompasses only those management-level employees who "are empowered" to take "tangible employment actions" against lower-level employees, and not managers who merely oversee or direct employees' daily activities. Thus, the Court's holding in Vance v. Ball State University greatly increases an employer's ability to assert the affirmative defense against discrimination and harassment claims brought under Title VII of the Civil Rights Act of 1964, that the Court earlier had articulated in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). But perhaps just as important, the Court further explained that the clarified definition of "supervisor" (i) "is one that can be readily applied" by courts and litigants alike; (ii) can further allow parties to discern "even before litigation is commenced whether an alleged harasser was a supervisor"; and thus (iii) allow the parties to "be in a position to assess the strength of a case and to explore the possibility of resolving the dispute" before any suit is filed.
As relevant here, in Faragher and Ellerth the Supreme Court formulated a three-tiered examination to be used when determining whether an employer should be held vicariously liable for the discriminatory conduct of a "supervisor." First, employers are strictly liable for the discriminatory conduct of "supervisors" if the offending conduct resulted in a "tangible employment action." But under the second tier of the analysis, employers may then assert an affirmative defense to avoid strict liability by establishing that the supervisor's offending conduct did not result in a tangible employment action because (i) the employer exercised reasonable care to prevent and correct promptly any offending behavior caused by the "supervisor"; and (ii) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. Finally, as to discriminatory conduct of an employee's co-workers, it falls on the employee to establish that the employer was "negligent either in discovering or remedying" the offending behavior. Consequently, and as the Vance Court pointed out, for Faragher/Ellerth purposes "it is obviously important whether an alleged harasser is a 'supervisor' or merely a co-worker."
The Supreme Court clarified that important distinction in Vance by limiting the scope of the term "supervisor". Specifically, the Court confirmed that the term "supervisor" encompasses only management-level employees who have the ability to effect "'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 of benefits.'" In so holding, the Court expressly rejected the definition of "supervisor" that was advocated by the U.S. Equal Opportunity Commission Guidance, as well as adopted by several circuit courts of appeals: that "supervisor" status is equated with the ability to exercise "significant direction over another's daily work." That definition of "supervisor", the Court explained, would inevitably lead litigants, courts, and perhaps jurors to undertake "nebulous" and "murky" examinations of the so-called "supervisor's" daily duties, and which could be resolved only on case-by-case bases. In contrast, the definition embraced by the Court in Vance is "readily applicable" and clear enough to resolve the issue of "supervisory" status even before litigation commences. As the Court explained, "supervisory" status now can be determined "generally by written documentation," thus allowing parties to "be in a position to assess the strength of a case and to explore the possibility of resolving the dispute" before any potential lawsuit is brought.
For employers, Vance is a watershed decision in discrimination and harassment law on two levels. On its surface, the Supreme Court created much-needed certainty as to who qualifies as a "supervisor" for Faragher/Ellerth purposes. But on a deeper level, the Court has signaled that its clarification of "supervisor" was needed, in part, to simplify complicated Title VII lawsuits, if not resolve them altogether before any litigation begins. Vance, accordingly, will benefit litigants, courts, and jurors alike by streamlining — and, perhaps, truncating — harassment and discrimination cases that have grown more complicated since the Court decided Faragher and Ellerth fifteen years ago.