Back in 1998, the U.S. Supreme Court announced two important decisions that clarified the scope of an employer’s liability for workplace sexual harassment under Title VII. These two cases are Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and they announced the rule that continues to this day — that is, employers are strictly liable under Title VII for severe or pervasive workplace harassment that culminates in a tangible adverse employment action if the harassment was committed by a “supervisor” of the victim. If the harassment by a supervisor does not culminate in a tangible adverse employment action, then 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 unrea sonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Similarly, if the harassment was committed by a non-supervisory co-worker, the employer was not liable under Title VII unless the employer was found to be negligent in controlling the working conditions.
In short, since 1998 a lot rides on whether the harasser is a “supervisor” or simply a co-worker.
Since the Faragher and Burlington Industries decisions, lower courts have grappled with the key question that was left open in those decisions — that is, who qualifies as a “supervisor” for purposes of imposing sexual harassment liability on an employer? Is a “supervisor” anyone who directs or oversees the victim’s daily work? Or, is the definition of “supervisor” more limited, perhaps only to those few people who have actual authority to hire and fire the victim?
Today the U.S. Supreme Court answered this question in Vance v. Ball State University. In Vance, a sharply divided Court took the more limited view and held that an employee is a “supervisor” only when the employer “has empowered that employee to take tangible employment actions against the victim,” which the Court defined to mean “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 U.S. Supreme Court explicitly rejected the broader definition of “supervisor” found in the EEOC Guidance. Although that broader definition had been accepted and applied by several lower courts, the U.S Supreme Court found that definition too “nebulous” and “vague.”
The U.S. Supreme Court’s 5-4 ruling in Vance v. Ball State University effectively makes it harder for a victim to bring a sexual harassment claim under Title VII. You can find the decision here.
Note: this ruling will not help most California employers. That’s because most California sexual harassment and discrimination suits are brought under the state’s Fair Employment and Housing Act (“FEHA”), not Title VII. California’s FEHA adopts a broader definition of “supervisor” that includes not only those who can hire and fire but anyone with “the responsibility to direct [employees], or to adjust their grievances, or effectively to recommend that action.” See Cal. Gov’t Code §12926(s). This definition makes more co-workers “supervisors” under California law compared to Title VII law, which in turn creates greater liability for California employers under state law.
