Employers are Strictly Liable for Supervisors' Acts

Today, the United States Supreme Court in a 5-4 decision in Vance v. Ball State University, resisted an employee’s urging to expand the definition of “supervisor.”   Instead, the Court held that "[a]n employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., 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.” Id.  

In Vance, the Petitioner, an African American woman, sued her employer alleging that a fellow employee created a racially hostile work environment in violation of Title VII.  The District Court granted summary judgment to the employer holding that the employer was not vicariously liable for a co-worker’s alleged actions because the co-worker, who could not take tangible employment actions against the Petitioner, was not a supervisor.  The Seventh Circuit affirmed.

Title VII prohibits workplace harassment based on race, color, national origin, religion and sex. Under Title VII, an employer’s liability for workplace harassment may depend on the status of the alleged harasser.  If the employee alleged to have harassed a plaintiff is the plaintiff’s co-worker, the employer is liable only if the employer is found to have been negligent in controlling working conditions.  In cases in which the alleged harasser is a “supervisor,” however, different rules apply.  If the supervisor’s alleged harassment results in a tangible change in employment status, the employer is strictly liable.  If no tangible employment action is taken, the employer may successfully assert an affirmative defense to liability if: 

(1) the employer exercised reasonable care to prevent and correct any harassing behavior and

(2) the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. 

The purpose of Title VII is not “to provide redress but to avoid harm.”  The Court’s definition of  a supervisor is narrow enough to be consistently and readily applied by employers.  Employers should redouble their efforts to provide anti-harassment training to all supervisors to avoid strict liability under Title VII.  This training should also arm supervisors with the ability to appropriately respond to employee harassment complaints to ensure that employer anti-harassment policies are followed and that employers can assert the affirmative defense.   

For anti-harassment training and review of employment policies and handbooks, contact Mary Elizabeth Davis (804) 697-2035.

Spotts Fain publications are provided as an educational service and are not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.