On June 24, 2013, the Supreme Court clarified when an individual actor would be considered a supervisor for liability purposes under Title VII of the Civil Rights Act of 1964. In Vance v. Ball State University, the court returned to its 1998 decisions in Faragher v. Boca Raton and Burlington Industries v. Ellerth, and concluded that a supervisor for purposes of vicarious harassment liability is an individual who the employer has empowered to take “tangible employment actions” against an employee, i.e., to effect significant changes in employment status, such as hiring, firing, promotions, significant job assignment or significant changes in benefits.

The court noted that its decision as to who is a supervisor under Title VII is implicit in its analysis and framework in Faragher and Ellerth, which drew a sharp line between co-workers and supervisors and which teaches that the authority to take tangible employment actions is the defining characteristic of being a supervisor. Concluding that the definition that it enunciated could be readily applied, the court also noted that employees would also be protected from actions by straw bosses, leadmen, and co-workers, by showing that the employer was negligent in failing to prevent and/or stop unlawful harassment. 

The Supreme Court's analysis and holding does nothing to increase the burden on the employer to avoid vicarious liability for supervisory harassment, nor from protecting itself from hostile environment claims resulting from the inappropriate actions of co-workers and other nonsupervisors. The court's decision is instructive to plaintiffs' counsel by teaching that harassment by leadmen and straw bosses will not lead to automatic liability. It also forecasts that a plaintiff may now have a harder time making its case, because it will have to establish negligence. This will be difficult with an employer who has taken reasonable care to prevent harassment and prompt and appropriate corrective action when it was discovered.

Vance is a perfect reminder to employers to review their harassment policies and practices. This includes having a clear, plain English, zero tolerance policy prohibiting harassment of all kinds with examples of inappropriate conduct and unlawful harassment. The policy should clearly state that employees will not be retaliated against for reporting or complaining about unlawful harassment. The policy should be endorsed and signed by the chief executive officer, or similar management individual. Additionally, the employer should revisit its educational and training programs, and retrain employees and supervisors about the prohibitions and requirements of the policy. Such training is persuasive evidence before administrative agencies and the courts that the employer has taken reasonable steps to prevent unlawful harassment. Efforts must be made to train employees on the multiple avenues available to report and complain about harassment. Job descriptions should also be reviewed to clearly identify who has supervisory authority, and to educate those supervisors that their status could lead to vicarious liability for their unlawful actions. Supervisors and management must also be trained on how to conduct prompt and proper investigations of allegations of harassment. This includes proper interview techniques, the proper gathering of evidence, and the preparation of useful witness statements. Finally, supervisors and managers must be trained on how to take prompt and appropriate corrective action when unlawful harassment is rumored to have occurred, or when it has occurred.