Vance v. Ball State University: Supreme Court Limits Employer Liability In Title VII Actions

In Vance v. Ball State University ___ U. S. ___ (6/24/13) the Supreme Court considered who qualifies as a “supervisor” for purposes of establishing vicarious liability in a Title VII discrimination and harassment action. Here is the case in a nutshell, taken from the majority opinion written by Justice Alito (joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas): 

In this case, we decide a question left open in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v. Boca Raton, 524 U. S. 775 (1998), namely, who qualifies as a "supervisor" in a case in which an employee asserts a Title VII claim for workplace harassment? 

Under Title VII, an employer's liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a "supervisor," however, different rules apply. If the supervisor's harassment culminates in a tangible employment action, 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) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Id., at 807; Ellerth, supra, at 765. Under this framework, therefore, it matters whether a harasser is a "supervisor" or simply a co-worker. 

We hold that an employee is a "supervisor" for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.... 

Slip op. at 1-2.  

What does it mean to be "empowered by the employer to take tangible employment actions against the victim"?  Funny you should ask.  

Citing Ellerth, the Court held that one is so empowered when one may 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." Slip op. at 9. The Court rejected the position adopted by the EEOC and several lower courts that a supervisor is one with the ability to "exercise significant direction over another's daily work." Ibid.  

Writing in dissent, Justice Ginsburg (joined by Justices Breyer, Sotomayor, and Kagan) argued that the Court should follow the approach adopted by the EEOC after Ellerth and Faragher that a supervisor is either: (1) an individual authorized "to undertake or recommend tangible employment decisions affecting the employee," including "hiring, firing, promoting, demoting, and reassigning the employee"; or (2) an individual authorized "to direct the employee's daily work activities."  

The opinion is available here.