The U.S. Supreme Court adopted an objective test for determining an employee’s Title VII “supervisory status” in Vance v. Ball State University. The question in Vance was what level of authority must an individual have to qualify as a “supervisor” for purposes of Title VII vicarious liability. This is an important issue because the employee’s status often makes the difference in whether the employer is held liable for the actions of its employee that subject a co-worker to harassing conditions.
An employee who is subjected to a tangible employment action at the hands of a harassing supervisor can subject the employer to strict liability for the harassment. Conversely, an employee who is subjected to harassment by a non-supervisory co-worker can only establish employer liability only upon a showing of negligence (i.e., that the employer was aware of the harassment that was so severe or pervasive as to effect the terms and conditions of employment and failed to take prompt remedial action designed to end the harassment). Consequently, an accused harasser’s status as supervisor or non-supervisor has important ramifications for determining an employer’s liability for Title VII harassment.
The Court adopted the objective choice of the two tests advanced by the parties. In its opinion, the Court held that an alleged harasser is a “supervisor” for purposes of Title VII vicarious liability when the individual is empowered to take tangible employment actions against the victim. Stated another way, the “supervisor” must be empowered by the employer to hire, fire, discipline, promote, demote or transfer the victim. The authority to direct some of the employee’s daily work assignments or tasks, is not sufficient to render the harasser employee a supervisor.
Having an objective test to apply and govern who is and is not a supervisor should make that determination readily apparent early in litigation and provide parties with more predicable outcomes in Title VII harassment cases.
You can download a complete copy of Vance v. Ball State University here [pdf].
Follow me on Twitter @RussellCawyer.