On June 24, 2013, the United States Supreme Court narrowed the definition of “supervisor” as it relates to racial and sexual harassment claims, thereby raising the burden of proof for employees and former employees to prove liability on the part of their employer.
Under Title VII, an employer’s liability for workplace harassment depends on the status of the alleged harasser. If the harassing employee is the plaintiff’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 results in “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 employer is strictly liable (i.e., the employer is held responsible for the employee’s actions regardless of the employer’sculpability or fault). Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998). 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. Faragher v. Boca Raton, 524 U. S. 775, 807 (1998); Ellerth, 524 U.S. at 765.
On June 24, 2013, the U.S. Supreme Court decided the case of Vance v. Ball State University, No. 11-556, — U.S. — (2013). The African-American plaintiff-employee asserted that another White employee—who the plaintiff-employee alleged was her supervisor—glared at the plaintiff-employee, slammed pots and pans around her and blocked her on an elevator. The trial court held that the employer was not responsible for the White employee’s alleged actions because, although she may have directed some of her work duties, she could not take tangible, adverse employment actions against the plaintiff-employee, and was therefore not a supervisor. The Supreme Court agreed with the lower court’s ruling. In affirming the ruling, the Supreme Court held that for purposes of an employer’s liability for an employee’s actions under Title VII, an employee is a “supervisor” only if he or she is empowered by the employer to take tangible employment actions against the victim. The Court based its holding on the framework adopted in Ellerth and Faragher which draws a sharp line between co-workers and supervisors and implies that the authority to take tangible employment actions is the defining characteristic of a supervisor.
The Supreme Court’s ruling in Vance is a victory for employers. The group of employees deemed to be supervisors is now more limited and somewhat easier to delineate. Unless the employer has vested the individual with the power to hire, fire, promote, demote, transfer or discipline the complaining employee, the court must conduct the analysis regarding the employer’s liability under the co-worker framework for employer liability (which requires the plaintiff-employee to prove employer negligence in order to recover against the employer). An employee’s authority to take tangible actions may be proved or disproved by concrete evidence such as job descriptions and testimony as to past practices. The Court’s adoption of this more narrow definition of “supervisor” will likely result in the issue of supervisor liability being decided more frequently at the summary judgment stage of litigation.
This Newsletter is a publication of the Labor and Employment Department of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi. This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.
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