In Maetta Vance v. Ball State University, Case Number 11-556, here, the U.S. Supreme Court held (5-4) that under Title VII, an employee is a “supervisor” for purposes of employer vicarious liability only if he or she is empowered by the employer to take tangible employment actions against the victim. The definition of supervisor “accounts for the fact that many modern organizations have abandoned a hierarchical management structure in favor of giving employees overlapping authority with respect to work assignments.” FYI, “supervisor” is not a term used by Congress in Title VII.

Under Title VII, if the harasser is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. However, when the harasser is a “supervisor,” if the supervisor’s harassment culminates 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,” Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 761), the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Faragher v. Boca Raton, 524 U. S. 775, 807.

Under Ellerth and Faragher, a critical first step in any litigation is whether the harasser is a “supervisor” or co-worker. Some courts have held that an employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the victim. Other courts have followed the approach advocated by the EEOC’s Enforcement Guidance, which ties supervisor status to the ability to exercise significant direction over another’s daily work. The Court held:

… an employer may be vicariously liable for an employee’s unlawful harassment only 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, or a decision causing a significant change in benefits.’ … We reject the nebulous definition of a “supervisor” advocated in the EEOC Guidance …”

The Court stated that the framework adopted in Ellerth and Faragher “draws a sharp line between co-workers and supervisors and implies that the authority to take tangible employment actions is the defining characteristic of a supervisor.” The Ellerth/Faragher framework is one under which supervisory status can usually be readily determined, generally by written documentation. Moreover, the determination of whether a harasser is a supervisor “will often be capable of being discerned before (or soon after) litigation commences and is likely to be resolved as a matter of law before trial” (e.g., at summary judgment).

The Court stated when a harasser is not a supervisor, a plaintiff can prevail on her Title VII claim by showing that her employer was negligent in failing to prevent harassment from taking place. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed is relevant in making this determination.

Not only does this ruling again emphasize the importance of anti-harassment policies and harassment investigation procedures, but it also provides guidance to employers in defining supervisors in job descriptions and reality. We also should expect to see new guidance from the EEOC on the definition of “supervisor” in the near future.