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For Discrimination Suits, Who's a 'Supervisor'?

By Brett Snider, Esq. on June 25, 2013 | Last updated on March 21, 2019

The Supreme Court ruled Monday that supervisors are those individuals empowered by an employer to make "tangible employment actions" for purposes of Title VII suits for harassment.

In a 5-4 decision in Vance v. Ball State University, the Court determined that businesses could not be held strictly liable for employee harassment where that employee had no ability to hire or fire, reports the Associated Press.

For business owners, this means more protection from Title VII suits for harassment due to employee misconduct.

Illegal Harassment and Title VII

Employees can sue a company for harassment under Title VII of the Civil Rights Act of 1964 based on that employee's:

When an employee is harassed by a supervisor, the business can be held strictly liable for the emotional damages, lost wages, or back pay stemming from the harassment.

One type of harassment is called "quid pro quo" harassment, when a supervisor uses his position to coerce an employee into sexual favors in exchange for a move up in the company (pay, promotion, etc.)

Vicarious Liability for Supervisor

Quid pro quo harassment and any other kind that discriminates based on a protected category (such as sex, race, etc.) is illegal under Title VII, and under vicarious liability the business owner can often be held responsible for his employee's misconduct.

Vicarious liability only holds a business to a negligence standard in the case of regular employees, but if that employee can hire or fire the victim, the standard is strict liability.

This means that even if a company acted reasonably in trying to stop the harassment, that business may still be liable for damages.

What Defines a Supervisor?

Until the Court's decision in Vance, there has been some confusion about who can be cpnsidered a "supervisor" for the purposes of a Title VII harassment suit, with some lower courts focusing on actual supervising of tasks and others on hierarchy.

The answer from the Vance Court is simple: If the employee has the power to make "tangible employment actions" regarding the victim (e.g., hiring, firing, demoting, promoting, etc.), then that employee is considered a supervisor.

Even harassing supervisors may not cause a company to be liable, as the Supreme Court recognized that a defense to liability exists when:

  1. A company takes reasonable care to address harassment, and
  2. The victim does not take advantage of company anti-harassment policies and corrective measures.

Having a proper employee anti-harassment policy may save your business from Title VII liability even with harassing supervisors.

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