Who is a Supervisor for Purposes of Imposing Vicarious Liability under Title VII: U.S. Supreme Court Asks the Government to Weigh In

Contributed by Jon Hoag

A racial harassment case decided last June by the Seventh Circuit has received attention from the U.S. Supreme Court.  On February 21, 2012, the Supreme Court asked the Solicitor General to file a brief outlining the government’s view on the definition of “supervisor” under Title VII.  The definition of “supervisor” is important for determining when to impose vicarious liability on employers in Title VII harassment cases.  An employer is strictly liable for harassment by a supervisor and, in such cases, may only assert an affirmative defense when the harassment does not result in a tangible employment action. Generally, a tangible employment action involves a significant change in employment status, such as firing, demotion, reassignment, etc. Employers can more easily defend against alleged harassment by co-workers so long as the employer takes reasonable corrective action upon obtaining knowledge of or discovering the harassment.

In Maetta Vance v. Ball State University ,et al., the Seventh Circuit reached its determination that Ball State University was not liable for harassment alleged by Maetta Vance, in part, by rejecting Vance’s assertions that some of the alleged harassment stemmed from supervisors.  The Seventh Circuit declared that all of the alleged harassment was from co-workers and Ball State University took prompt and corrective action to remedy the alleged harassment.   

Vance is asking the Supreme Court to review the matter because there is a split in the circuits as to how the term “supervisor” is defined under Title VII.  According to Vance, the First and Eighth Circuits have adopted the Seventh Circuit’s definition of “supervisor” as someone that has authority over an employee’s “employment terms” and has “the power to hire, fire, demote, promote, transfer, or discipline.”  On the other hand, the Second, Fourth, and Ninth Circuits (and the EEOC) have decided that even employees that lack such authority can still meet the supervisor definition if the employee oversees another worker’s daily assignments and performance.

How the term “supervisor” is defined under Title VII is what determines when an employer might be subject to vicarious liability for Title VII harassment.  This will be an important case to monitor as it might impact how companies and organizations decide to delegate authority and/or help determine the necessary audience for addressing preventative measures such as supervisory training and instruction on the topic of Title VII harassment.