Title VII prevents workplace harassment based on an employee’s race, sex, or other protected status. But the law draws a distinction between harassment committed by an employee’s co-worker and harassment committed by an employee’s supervisor.
An employer will be liable for harassment by co-workers and non-supervisory employees only if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action. Generally speaking, this means that the employee must prove she that complained about the conduct.
The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor’s harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Traditionally, courts considered a “supervisor” to be any employee responsible for managing the victim’s “day to day” activities. Middle managers constituted the largest group of supervisors under this traditional definition.
In a recent case, however, the United States Supreme Court significantly narrowed the definition of “supervisor,” with the effect that it will be more difficult in the future for employees to hold their employers liable for supervisory harassment. In Vance v. Ball State University, the Supreme Court held that, for purposes of Title VII, the term “supervisor” means an employee who has the power “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.’” 133 S.Ct. 2434, 2443 (2013). In so holding, the Supreme Court rejected the EEOC’s looser interpretation of “supervisor,” which “tie[d] supervisor status to the ability to exercise significant direction over another’s daily work.” Id. In other words, the Supreme Court drew a sharp distinction between high level managers and day-to-day supervisors, holding that only the former meet Title VII’s definition of “supervisor.”
The practical consequence of this decision is that, now, courts may hold employers directly liable only in the narrowest category of cases: those where a top level manager (i.e., someone empowered by the employer to hire, fire, promote, etc.) committed unlawful harassment that resulted in an adverse action, such as demotion or termination. In all other cases, including those where a supervisor without such authority unlawfully harasses an employee, the employee will be required to prove that the employer negligently failed to prevent the harassment after the victim complained. This underscores the need for employees in virtually all cases to report unlawful harassment whenever it occurs, because it will be much harder for employees to prove harassment in the absence of such complaints from now on.