Resolving a split in the circuits, the United States Supreme Court held on June 24, 2013 in Vance v. Ball State University that a “supervisor” is a person empowered by an employer to take tangible employment actions against an employee. A tangible employment action means making a significant change in another employee’s status, such as hiring, firing, demoting, promoting, reassigning significantly different duties, and changing employee benefits significantly.
This decision resolves the question of who is considered a supervisor after the landmark decisions in Burlington Ind. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998). In Ellerth and Faragher, the Court held that an employer would be strictly liable for sexual harassment perpetrated by a supervisor if the supervisor took tangible employment action against the employee. If alleged sexual harassment is committed by a non-supervisor, or no tangible employment action was taken by a supervisor, the employer is held to a negligence standard. An employer can avoid liability if it establishes, as an affirmative defense: (1) it exercised reasonable care to prevent and correct any harassing behavior; and (2) that the plaintiff/employee unreasonably failed to take advantage of the preventative or corrective opportunities the employer provided.
Although hailed as a victory for employers, the Vance decision actually seems to only clarify the existing liability standard for sexual harassment cases and apply it to race cases. Because strict liability under Ellerth/Faragher requires tangible employment action, only those “supervisors” who truly had this power could expose the employer to strict liability. Merely alleging a co-worker is a supervisor does not trigger strict liability absent tangible employment action. Further, even supervisors fully empowered to take tangible employment action do not trigger strict liability unless they actually take the action. The label given the alleged harasser does not matter; what matters is whether tangible employment action is taken.
The Court applied the Ellerth/Faragher sexual harassment framework to race cases without analysis or discussion, stating in a footnote that the parties did not raise the issue so the Court assumed the same framework should be applied to race cases. This ensures that employers may use the Ellerth/Faragher affirmative defense in race cases.