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Who is considered a supervisor under Title VII? Since our last article discussing Vance v. Ball State University, the U.S. Supreme Court has given us the answer. According to the Court, a supervisor is a person

empowered by the employer to take tangible employment actions against the victim; 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.

Vance involved allegations of racial harassment and discrimination in violation of Title VII. Though the parties disputed the precise nature and scope of the harasser’s duties, it was clear that the harasser did not have the power to hire, fire, demote, promote, transfer or discipline the plaintiff. Given the harasser’s inability to take a tangible employment action against the plaintiff, the Court held that the harasser does not qualify as a supervisor under Title VII.

Why is this important? An employer’s liability under Title VII typically depends on whether the harasser is the victim’s supervisor or merely a co-worker. From a subordinate’s perspective, decisions made by a supervisor carry the same weight as those made by the employer. Since employers make the decision to hand the power over to their supervisors, employers may be held vicariously (strictly) liable when that power is abused. An employer may face supervisor liability under Title VII even if it did not know and had no reason to suspect that one of its employees was being unlawfully treated.

Different rules apply if the harasser is merely a co-worker. As the Court’s dissenting opinion notes, when the harassment comes from a fellow employee, “one can walk away or tell the offender to ‘buzz off.’ A supervisor’s slings and arrows, however, are not so easily avoided.” This is why employers will typically be held to the lower and easier to defend negligence standard when allegations of harassment involve co-workers rather than supervisors.

The Court’s decision has been viewed as a victory for employers because its limited definition of supervisor should reduce the number of employees who can expose an employer to supervisor liability under Title VII. In the past, the right to direct a subordinate’s daily work could have been enough to make an employee a supervisor under Title VII.

The Court’s fixed definition of supervisor should also make it easier for employers to avoid supervisor liability under Title VII. Previously, employers had to be concerned about the level of control co-workers had over one another. Following the Court’s decision in Vance, employers concerned about supervisor liability under Title VII need only focus on those employees with the authority to take a tangible employment action (fire, demote, discipline, etc.) against another employee.

Though employers may ultimately benefit from the Vance decision, it should not be seen as a shield against Title VII liability. Employers still have an obligation to prevent and stop instances of unlawful harassment, regardless of whether the harasser is a supervisor. Commitment, vigilance and training are still the best ways to avoid liability under Title VII.

Employers looking for ways to limit the risk of employment-related lawsuits should take The Human Equation’s online Preventing and Managing Sexual Harassment in the Workplace and An Overview of Employment Liabilities course.

The Human Equation prepares all risk management and insurance content with the professional guidance of Setnor Byer Insurance and Risk.

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