On June 24, 2013, in a decision much anticipated by employment lawyers, the U.S. Supreme Court decided the definition of a “supervisor” for purposes of imposing strict liability against an employer for workplace harassment under Title VII. In Vance v. Ball State Univ., the Court ruled that an employee is considered a “supervisor” for purposes of imposing vicarious or strict liability under Title VII only if he or she is empowered by the employer to take “tangible employment actions” against employees under his or her supervision, including the victim. “Tangible employment action” means that the individual must have authority to make 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.” If a supervisor is authorized to take such action and his or her unlawful harassment culminates in such a tangible employment action, the employer is strictly liable for the harassment. In reaching its decision, the Supreme Court rejected the broader definition of “supervisor” adopted by the EEOC and various courts, in which a supervisor would also include an individual authorized “to direct the employee’s daily work activities.”
The Court made clear that its approach does not leave employees unprotected against harassment by co-workers who have authority to assign daily tasks. Employers can still be liable if they are negligent in permitting harassment to occur. The nature and degree of authority given to the co-worker will be a factor in determining the employer’s negligence.
What does this mean for employers?
As the Court noted, this “workable” definition is one that can be readily used to help employers better apply Title VII and prevent workplace harassment. It should enable parties to a lawsuit to discern the alleged harasser’s “supervisor” status early in litigation or on summary judgment as a matter of law, before trial. This should help employers better assess the range of exposure early in a lawsuit, potentially leading to earlier, less-costly resolutions.
Employers should continue to provide ongoing anti-harassment training for all employees, with additional training for managers. In addition, employers will have available the Faragher/Ellerth affirmative defense for these claims, which requires an employer to show that it exercised reasonable care to prevent and correct promptly any unlawfully harassing behavior, and that the victim unreasonably failed to take advantage of any preventive or corrective opportunities provided or to otherwise avoid the harm.
Therefore, employers should continue to have in place an anti-harassment policy with a required complaint procedure, where employees must bring a complaint of alleged harassment to management. The procedure should direct employees to take complaints to only specified managers, such as the Director of Human Resources or a toll-free complaint “hotline.” Policies that allow an employee to bring a complaint to any manager are disfavored, since that could potentially allow the employee to argue that he or she “complained” to the alleged harasser under the policy, and the harasser did nothing.