On June 24, 2013, the United States Supreme Court rendered two decisions that make it easier for employers to defend Title VII harassment and retaliation cases, and perhaps in other discrimination cases beyond Title VII. The cases are Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar.
Vance v. Ball State University
In Vance, the Supreme Court narrowed the definition of who is a "supervisor" for purposes of determining whether an employer is vicariously liable for workplace harassment. The Court held that an employee is a supervisor under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim. Tangible actions are those that result in 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. The Court's decision resolves a circuit split as to how much authority the alleged harasser must have to be considered a supervisor for purposes of vicarious liability, and rejects the views of those circuits, and the EEOC, that a supervisor is one who merely controls the daily activities of the alleged victim of harassment.
The petitioner, Maetta Vance (an African-American female), sued her employer, Ball State University, alleging that her "supervisor" (a Caucasian female) subjected her to a racially hostile work environment in violation of Title VII, and as a result, the employer was vicariously liable. A lower court granted summary judgment in favor of the employer, reasoning that the employer could not be held vicariously liable because the alleged harasser did not have the power to hire, fire, demote, promote, transfer, or discipline the petitioner, and that the employer could not be liable for negligence because it responded reasonably to the petitioner's complaints. On appeal, the Seventh Circuit affirmed, largely following the district court's reasoning. The Supreme Court affirmed the Seventh Circuit's decision.
Under Title VII, an employer's liability for workplace harassment often hinges on the status of the allegedly harassing employee as the victim's co-worker or supervisor. The stakes increase for the employer if the harasser is the victim's supervisor.
If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions. Conversely, if the employee is the victim's supervisor (someone who is empowered by the employer to take tangible employment actions against the victim), and the supervisor's harassment culminates in a tangible employment action, the employer is strictly liable for the workplace harassment. If no tangible action is taken by the supervisor, the employer may escape liability by establishing, as an affirmative defense, that the employer exercised reasonable care to prevent and correct any harassing behavior and that the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided. The Supreme Court's narrowed definition of who is a supervisor is significant because it should winnow the pool of employees who can expose the employer to strict liability for workplace harassment.
Based on the newly-minted definition of who is a supervisor, the Supreme Court explains that an alleged harasser's supervisor status should be capable of being discerned before (or soon after) litigation commences, and is likely to be resolved as a matter of law before trial.