Supreme Court Adopts Narrow Definition of “Supervisor” Under Title VII
Employee Emily files a Title VII sexual harassment charge with the EEOC, and then a lawsuit in a Virginia federal court, against ABC Company. Emily alleges that she was subjected to egregious unwelcome comments and actions of a sexual nature in the workplace by Charlie. Charlie has the title of Lead Coordinator in Emily’s department and has the authority to direct Emily’s daily work activities. However, Charlie does not have the power to hire, fire, demote, promote, transfer or discipline Emily. A critical question in determining whether ABC may be liable is whether Charlie is considered a “supervisor” under Title VII.
In Vance v. Ball State University et al., 2013 U.S. Lexis 4703 (U.S. June 24, 2013), the Supreme Court, in a controversial 5-4 decision, held that the following test would apply in determining whether Charlie is a “supervisor” under Title VII:
We hold that an employee is a ‘supervisor’ . . . under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim, i.e., to 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.’
In so holding, the Court expressly rejected (and criticized) the more expansive definition advanced by the EEOC in 1999, in which the EEOC opined that an employee could also be a “supervisor” if the employee had “authority to direct [another] employee’s daily work activities.” Thus, in my example above, Charlie would not be Emily’s supervisor under Title VII.
This is an important decision because a different test of liability applies depending on whether the alleged harasser is a supervisor or a co-worker.
Potential Employer Liability Under Title VII if Alleged Harasser is “Supervisor”
An employer is liable under Title VII when a supervisor engages in harassment based on a protected class (e.g., sex) and takes a tangible employment action (e.g., firing, failing to promote, reassignment with significantly different responsibilities) against the victim. In such a case, the employer is strictly liable for the supervisor’s action.
In addition, if a supervisor’s harassment does not culminate in a tangible employment action, the employer can nevertheless be liable for the supervisor’s creation of a hostile work environment unless the employer is able to establish an affirmative defense. Specifically, an employer can mitigate or avoid liability by showing that 1) it exercised reasonable care to prevent and promptly correct any harassing behavior and 2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities that were provided.1
Potential Employer Liability Under Title VII if Harassment Committed By Co-Worker
On the other hand, if the harassing employee is a co-worker, a negligence standard applies. To prevail, the alleged victim must show that “the employer knew or should have known of the offensive conduct, but failed to take appropriate corrective action.” This negligence standard has been the law in Virginia (and elsewhere) for decades. In a 1995 Virginia case, the 4th Circuit held:
When presented with the existence of illegal conduct, employers can be required to respond promptly and effectively, but when an employer’s remedial response results in the cessation of the complained of conduct, liability must cease as well.
Spicer v. Virginia Dep’t. of Corr., 66 F.3d 705, 711 (4th Cir. 1995) (en banc). Bear in mind, however, that an employer cannot adopt a “see no evil, hear no evil” strategy. An employer can be charged with constructive knowledge of the co-worker harassment (i.e., “should have known”) when it fails to provide reasonable procedures for victims to register complaints. In the Ball State decision, the Court offered this admonition:
A plaintiff can still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant.
Bottom Line Advice For Employers
There is much to say about this decision. For now, I offer three recommendations.
- Do you know who would be considered the “supervisors” in your organization under the Court’s test? HR professionals are well advised to analyze the organizational chart, talk with other executives, and determine the persons who are authorized to take “tangible employment actions.” (An employee may be a supervisor, however, even though his or her proposed action is subject to approval by higher management. If the employee has the power to make or recommend decisions having direct economic consequences for the alleged victim, the employee will still likely be found to be a supervisor.)
- Once a company has determined the identity of its supervisors, employers should ensure their supervisors receive regular training and education as to the company’s EEO policies and complaint process. Supervisors need to know the potential consequences of their actions. In addition, they must comprehend the proper protocol in the event that they become aware of potential violations of the company’s EEO policy (i.e., harassment, discrimination or retaliation).
- I also recommend that you implement some “checks and balances” to review proposed “tangible employment actions” by a supervisor before the action is implemented. It would be best if HR and/or upper management is able to confirm the justification for the action.
1 This standard was developed in two Supreme Court cases decided in 1998, Burlington Industries v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998).