June 25, 2013
U. S. Supreme Court Clarifies Title VII Sexual Harassment Standard
In a decision issued on June 24, 2013 (Vance v. Ball State), the U.S. Supreme Court clarified the legal standard for sexual harassment by a "supervisor" under Title VII. As you will recall, the Supreme Court had previously clarified in 1998, in the Faragher and Ellerth decisions, that the first step in determining an employer's liability for sexual harassment under Title VII is to determine whether the person creating the sexual harassment situation was a supervisor of the victim, or a mere co-worker of the victim. Differing standards for liability would apply depending upon the identity of the alleged harasser. When the alleged harasser is a supervisor, and when the victim has suffered a tangible employment action, then the employer's liability is virtually absolute (vicarious liability).
Some question had arisen regarding who is a "supervisor" under this dichotomy. In an EEOC Guidance, the agency had interpreted a "supervisor" to include an employee who may direct the victim's daily work activities, or who has the power to "recommend" tangible employment actions affecting the victim (such as termination, demotion, transfer, etc.). This interpretation had also been adopted by some Circuit Courts, and it led to potentially expanded liability for employers based upon the actions of co-workers who did not have an ultimate say-so in employment decisions, but whose opinions and recommendations might be considered by the decision-maker.
In Vance v. Ball State, the Supreme Court rejected the definition used by the EEOC and clarified that an alleged harasser is a "supervisor," for purposes of applying these legal standards, only if the employee is empowered by the employer to take tangible employment actions against the victim. No longer will it suffice for the employee's opinion to be taken into consideration in such matters, or for the employee to have a general ability to "direct the daily work activities" of the victim.
This decision is favorable to employers defending Title VII sexual harassment claims, since it limits the scope of potential automatic (vicarious) liability for the employer.