March 11, 2014

US Supreme Court Adopts Narrow Definition of “Supervisor” Under Title VII

On June 24, 2013, the United States Supreme Court clarified the definition of supervisor in employee harassment cases under Title VII. In Vance v. Ball State University, the Court held that only an employee who “is empowered by the employer to take tangible employment actions against the victim” is a supervisor. The Court’s decision adopted a bright-line practical standard easily applied by employers and employees, as well as courts. Before this decision, the circuits were split between this definition and a more vague definition advanced by the EEOC.


In 1998, through two landmark decisions, the Supreme Court solidified a framework for employer liability under Title VII for co-worker harassment. This framework established two sets of rules for liability and an affirmative defense. First, if the employee is merely a co-worker, then the employer is liable only if it was negligent in controlling the work conditions that allowed the harassment. Second, if the employee is a supervisor, the employer is strictly liable for the supervisor’s harassment. But the Court established an affirmative defense that allowed the employer to avoid liability if no tangible employment action was taken against the employee. In those cases, the defense applies 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. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. Boca Raton, 524 U.S. 775 (1998).

While the Supreme Court established this elaborate framework, courts following it have struggled to agree on the definition of supervisor.

The Vance Decision

Maetta Vance, an African-American woman, was employed at Ball State University in the Dining Services division. During her employment Vance lodged complaints regarding racial harassment and discrimination by her fellow employee, Saundra Davis. Davis was a higher-level employee in the same division, but she did not have the ability to hire, fire, demote, promote, transfer, or discipline Vance. Vance claimed that Davis was her supervisor and that BSU was liable for her actions. Both the trial court and Seventh Circuit found that Davis was not Vance’s supervisor. They relied on established precedent in the Seventh Circuit that required a supervisor to be empowered to hire, fire, Irvine Las Vegas Los Angeles Salt Lake City San Francisco demote, promote, transfer, or discipline. This precedent conflicted with a broader definition advocated by the EEOC’s Enforcement Guidance (adopted by the Second Circuit, among others), which includes the ability to exercise significant discretion over another’s daily work. The Supreme Court rejected the broader, more “nebulous,” definition advocated by the EEOC Guidance. The EEOC Guidance’s approach made the determination too fact specific, which the Court called a “study in ambiguity.” The Court explained that its decision was meant to allow supervisory status to be readily determined, and usually determined as a matter of law at the summary judgment stage.

Implications for Employers

Following Vance, the issue of supervisory status now is one that will likely be resolved as a matter of law before trial. The standard will avoid juror confusion and allow for clear jury instructions in trials of harassment claims without the need to instruct on alternative theories of liability. Vance’s most immediate impact will be on cases pending in jurisdictions such as the Second and Fourth Circuits, which had previously adopted the EEOC’s definition of supervisor.

California employers, however, shouldn’t get too excited, as Vance’s impact on harassment cases based on the FEHA is, unfortunately, likely to be limited. The FEHA imposes strict liability on employers for harassment committed by a supervisor and defines “supervisor” in a manner that resembles the EEOC standard Vance rejected. The FEHA’s definition of supervisor can encompass leads and others who do not have direct authority to hire, fire or take other tangible employment actions, but who can effectively recommend that action through the use of independent judgment. Cal. Gov’t Code § 12926(s). Further, sometimes even those employees that merely have the responsibility to direct others are considered supervisors in California. So, even with this clarification by the Supreme Court, California employers in most cases will still be fighting the same old battles.