A Step Towards Certainty in Employment Harassment

JURIST Guest Columnist Rae T. Vann of the Equal Opportunity Advisory Council argues that the Supreme Court's ruling in Vance v. Ball State University brought more certainty to Title VII harassment cases, but ambiguity remains ...

In an important decision under Title VII of the Civil Rights Act of 1964 (Title VII), the US Supreme Court ruled earlier in Vance v. Ball State University [PDF] that when determining an employer's liability for workplace harassment, the term "supervisor" applies only to those who are empowered by the employer to make ultimate employment decisions, such as about whom to hire or fire. In doing so, the Court has taken an important step in clarifying the critical distinction between supervisors and co-workers for purposes of determining an employer's vicarious liability for Title VII workplace harassment.

In Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, the Court established specific standards under which employers could be held strictly liable for unlawful harassment perpetrated by their supervisors. It ruled that an employer will be held strictly liable for a supervisor's harassment where the harassment results in a tangible employment detriment against the victim. Where a harassing supervisor's conduct creates a hostile work environment or results in some other, non-tangible employment detriment, the employer still will be subject to strict liability, but may avail itself of a two-part affirmative defense. In those circumstances, the employer can avoid liability by showing that (1) it exercised reasonable care to prevent and correct workplace harassment by, for instance, establishing meaningful and effective employee complaint investigation procedures, and (2) the plaintiff unreasonably failed to take advantage of those procedures.

Significantly, Title VII does not define the term "supervisor," and until this week, the Court had not provided definitive guidance on who is a supervisor for purposes of applying the Faragher/Ellerth strict liability rule. As a result, the lower federal courts had been applying different standards in deciding who is a supervisor. Some, such as the US Court of Appeals for the Second Circuit, endorsed the Equal Employment Opportunity Commission's (EEOC) expansive view that the term "supervisor" should be construed broadly to include not only individuals who are able to take a tangible job action, but also those employees with the ability to direct the daily work of other employees. Even if those employees do not have authority, for example, to hire and fire. Others, such as the US Court of Appeals for the Seventh Circuit in its Vance ruling below, applied a much stricter (and clear cut) standard, holding that an employee is not a supervisor unless he or she has the authority to directly hire, fire, demote, promote, transfer or discipline an employee.

In Vance, the Seventh Circuit found that because the harasser in question — whom the plaintiff claimed was a "supervisor" for Title VII purposes — did not have the power to directly take a tangible job action against her, the strict liability test did not apply. In a 5-4 decision released on June 24, 2013, the Court agreed, holding that under Title VII, "an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment action against the victim."

The Court in Vance thus embraced the Seventh Circuit's rule effectively defining a supervisor as one able to take a tangible job action, which invariably will bring more certainty and predictability to the litigation of Title VII harassment cases. At the same time, the decision is not entirely unambiguous.

For example, while there is no question that tangible job action encompasses the ability to hire, fire, promote, demote, discipline or transfer a subordinate employee, the Court also seems to imply that other actions that have direct economic consequences for victims would also be covered. In a footnote, the Court suggests that reassignment which forecloses eligibility for promotion could be a tangible job action. The Court also left open the possibility that a supervisor that needed approval before carrying out a tangible employment action would nevertheless qualify as a supervisor.

The Vance decision should make it considerably less difficult to determine whether an alleged harasser is a supervisor for the purposes of establishing vicarious liability under Title VII. At the same time, while the Court has adopted the most helpful definition from an employer perspective, the Court seems to have left open the possibility in certain cases that an employee without actual authority to make tangible employment decisions may nevertheless be considered a supervisor for Title VII liability purposes.

It is important to keep in mind that the Vance ruling does not relieve an employer from Title VII liability simply because it is determined the harasser was not a supervisor. Indeed, an employer that fails to satisfy its duty to take proper steps to prevent and correct co-worker harassment could well be deemed to have violated the law.

Rae Vann became EEAC's General Counsel in 2007. She previously served as Counsel to EEAC from July 2000 to December 2003. Ms. Vann has also served as Assistant Commission Counsel at the Connecticut Commission on Civil Rights, and as an employment lawyer with two large Connecticut law firms. She earned her J.D. at the University of Connecticut School of Law, and a B.S. in Public Policy and Management from Carnegie Mellon University.

Suggested citation: Rae T. Vann A Step Towards Certainty in Employment Harassment, JURIST - Sidebar, July 15, 2013, http://jurist.org/sidebar/2013/07/rae-vann-ball-state.php.

This article was prepared for publication by John Paul Regan, an Assistant Editor with JURIST's Professional Commentary Service. Please direct any questions or comments to him at professionalcommentary@jurist.org

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