Yesterday, the U.S. Supreme Court issued a decision in Vance v. Ball State University that has significant implications for employers in cases brought under Title VII. The Court held that an employee is a “supervisor” for purposes of vicarious liability under Title VII, only if the employee 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.
The Vance decision is important because employer liability for harassment under Title VII depends upon the status of the harasser. If the harasser is a co-worker, an employer will only be liable if it was negligent in controlling working conditions. On the other hand, if the harasser is a supervisor, the employer will be strictly liable if the harassment culminates in a tangible employment action. However, 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) the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Thus, as the Court made clear – “it matters whether a harasser is a ‘supervisor’ or simply a co-worker.” http://www.supremecourt.gov/opinions/12pdf/11-556_11o2.pdf
Yet, prior to Vance, the issue of whether a harasser was a co-worker or a supervisor was often a question of fact for a jury to decide. The test established by Vance simplifies the question. As the Court explained, the new test for whether an employee is a “supervisor” can be readily applied and, as a result, in a great many cases, the parties will be in a position to assess the strength of a case, and explore the possibility of resolving the dispute, or resolve the issue on summary judgment as a matter of law. Which, as the Court stated, will allow plaintiffs to know whether they have to show negligence and employers to know whether they have the burden of proving the affirmative defense to harassment.