Written by Galen T. Shimoda and Jennet F. Zapata
In the recent case of Vance v. Ball State University, the United States Supreme Court issued an opinion that narrowed the definition of what constitutes a "supervisor" under federal anti-discrimination laws, usually known as Title VII. The definition of "supervisor" matters because it determines the standard a court will apply in establishing an employer's liability for the discrimination suffered by one of its employees.
Under Title VII, an employer's liability for the harassment of its employees against other employees depends on the status of the harasser. If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling the work conditions. In other words, the harassed employee must show that the employer was negligent in permitting the harassment to occur.
However, when the harasser is a "supervisor," different rules apply. If the supervisor takes a tangible employment action, the employer is automatically liable whether or not it was negligent in permitting the harassment to occur. But if no tangible employment action is taken, 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 unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.
The Supreme Court addressed this issue and adopted a narrow definition of "supervisor" for purposes of Title VII claims. Specifically, the Court held that an employee is a "supervisor" if he or she is empowered by the employer to take tangible employment actions against the victim. An employee will be found to be able to exercise his power to take "tangible employment actions" if he or she has the power to "hire, fire, demote, transfer or discipline" an employee. Before imposing liability on the employer, the court will look at written documentation to establish if the harasser had the requisite authority.
The Court refused to interpret the term "supervisor" in accordance with its general usage and usage in other legal contexts because the term has varying meanings both in colloquial usage and in the law. It therefore rejected a broader definition of supervisor, including those who simply have the ability to exercise significant direction over another's daily work.
The Court tried to provide some sense of relief to claimants by stating that in cases of harassment by a co-worker and not a supervisor, the court can instruct the jury that the employer's negligence may be measured by considering the nature and degree of authority wielded by the harasser. In other words, to the extent the harasser wields a high level of authority, the employer must exercise a higher level of care in preventing and correcting such employee's harassment.
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