Consider this:  You are sued by one of your employees who alleges that another employee has discriminatorily harassed her.  Will you be liable for the sins of the alleged harasser?  How that case will proceed against you largely depends on whether the alleged harasser is a supervisor.  However, until the U.S. Supreme Court’s recent decision in Vance v. Ball State University, inconsistent definitions of “supervisor” produced conflicting answers to that employer liability question.

First, some background.  In a pair of 1998 rulings, the Supreme Court tied employer liability for harassment to the status of the harasser.  If the harasser is merely a co-worker of the victim, then the employer would be liable for the harassment only if the plaintiff employee proves that the employer was negligent in managing working conditions; that is, the employer knew or should have known of the harassment and failed to act reasonably to prevent or correct it.  If, on the other hand, the harasser is a supervisor and if the proven harassment results in a tangible employment action (such as, “sleep with me if you want the promotion”; you refuse and lose the promotion), then the employer is strictly liable, i.e., there is no escape.  If the supervisor’s harassment does not result in tangible employment detriment (such as the typical hostile and offensive work environment claim), then the employer can avoid liability by proving that (1) it exercised reasonable care to prevent and correct the harassing behavior, and (2) the complaining employee failed to take advantage of the preventive or corrective opportunities provided by the employer.  The Supreme Court did not, however, define “supervisor” in either of those decisions.

Over the years, two competing definitions emerged.  Some courts took the Supreme Court literally and held that a supervisor is one empowered by the employer to take tangible employment actions (e.g., hire, fire, demotion, deny promotion, or some other significant change in employment status, usually with economic consequences).  The Equal Employment Opportunity Commission (EEOC), followed by other courts, defined supervisor much more broadly as someone who directs another’s work.  The effect of the EEOC definition was to significantly increase the likelihood that the employer would have the burden of proving that the employee had unreasonably failed to use the employer’s preventive or corrective measures instead of the employee having the burden of proving that the employer had negligently failed to address the harassment.  The burden of proof difference is significant; the employer’s defense is much more challenging if it has the burden of proving that the harassment victim is responsible for the harm he/she claims to have suffered.

In Vance, the Supreme Court resolved the split in the lower courts and rejected the EEOC’s definition:

We hold that an 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.”

While the Court’s opinion does reshape the litigation battlefield, it does not mean that employers can relax their internal procedures for detecting and resolving employee concerns about workplace discrimination and harassment.  Employers should have policies and procedures for dealing with such grievances, should periodically train supervisors and managers to follow and implement those policies and procedures, should periodically remind employees about its policies and that management’s door is open to receive employee complaints or grievances, and should investigate and attempt to resolve complaints when they arise.  In a case of co-worker harassment, proof of your effective anti-discrimination/harassment policies and procedures will go a long way towards rebutting the employee’s management negligence claim.  Where the claim is one of supervisor harassment that did not result in a tangible job detriment, proof of those effective policies and procedures is absolutely essential if the employer is to meet its burden of proving that the employee failed to take advantage of them.

Obermayer labor and employment law attorneys are available to provide guidance and assistance on these issues.


The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.