On June 24, the United States Supreme Court held in a 5-4 decision that an employee is a “supervisor” for liability purposes under Title VII only if the employee has the power to take “tangible employment actions” against the alleged victim, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Vance v. Ball State University, et al., No. 11-556 (2013).

Maetta Vance, an African-American woman and the plaintiff in the case, sued her employer, Ball State University (“BSU”), alleging that a fellow employee, Saundra Davis, created a racially hostile work environment in violation of Title VII. Vance worked as a catering assistant at BSU; and Davis, a Caucasian woman, was employed as a catering specialist. The parties vigorously disputed the precise nature and scope of Davis’ duties, but they agreed that Davis did not have the power to hire, fire, demote, promote, transfer or discipline Vance.

The court ruled that Vance’s claim against BSU failed because Davis did not have the power to make a significant change in Vance’s employment status. When a supervisor makes a tangible employment decision, there is assurance that the injury could not have been inflicted absent the agency relation — a tangible employment decision requires an official act of the enterprise, a company act.  Additionally, in most cases, the decision is documented in official company records and may be subject to review by higher level supervisors.

In sum, an employer may be vicariously liable for an employee’s unlawful harassment under Title VII only when the employer has empowered the employee to take tangible employment actions against the victim.