In Title VII cases, an employer’s liability for illegal workplace harassment depends in part on the harasser’s position. If the harasser is the victim’s co-worker, then the employer will be liable if the employer was aware of the conduct and negligently failed to control working conditions. If, however, the harasser is a supervisor, then the employer will be vicariously liable for a supervisor’s unlawful conduct either that results in a tangible employment action, or where the employer cannot show (1) that it exercised reasonable care to prevent and promptly correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities that were provided. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998).

In Vance v. Ball State University, 11-556, 2013 WL 3155228 (U.S. June 24, 2013), the Supreme Court in a 5-4 decision held that a supervisor is someone who “is empowered by the employer to take tangible employment actions against the victim.” This means someone who can cause 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.” This decision narrows the scope of an employer’s vicarious liability for harassment under Title VII.

Federal appeal courts have used different tests to determine who is a supervisor under Title VII. Some courts, including the Seventh Circuit, defined a supervisor as someone who has the “power to hire, fire, demote, promote, transfer, or discipline the victim.” Other courts, such as the Second and Fourth Circuits, followed the approach adopted by the EEOC, which relates supervisor status to “the ability to exercise significant direction over another’s daily work.”

In rejecting the EEOC’s definition, and resolving the split in the federal circuits, the Supreme Court focused on how the narrower definition furthered the rationale of the Faragher and Ellerth decisions, and stated that it wanted to provide a clear standard for supervisor status, which “can usually be readily determined, generally by written documentation.” As a practical matter, this definition will assist employers by providing a means to have supervisor status decided as a matter of law before trial in many cases and, if there is a factual dispute, will then allow for clear jury instruction in harassment trials. The Court also noted, in an aside, that in cases involving non-supervisor harassment, which will require proof of employer negligence, “the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent.”

Employers should carefully review employee job descriptions, responsibilities, and duties to ensure that they have made it clear who has authority to take tangible employment actions like hiring, firing, promoting, and causing significant changes to benefits. Those that fall into this group should receive anti-harassment training.