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A Sharply Divided Supreme Court limits who qualifies as a “Supervisor” For Purposes of Holding Employers Liable for Workplace Harassment

On June 24, 2013, the United States Supreme Court addressed who qualifies as a “supervisor” in a case in which an employee asserts a Title VII claim for workplace harassment.  See Vance v. Ball State University et al., No. 11-556.

Under Title VII, an employer’s liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim’s “co-worker”, the employer is liable only if it was negligent in controlling working conditions.  However, in cases in which the harasser is a “supervisor,” the employer is strictly liable.  Justice Samuel Alito, writing for the conservative majority’s 5-4 opinion, held that “an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee 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.”

In so holding, as stated by Justice Ginsberg in dissent, the “Court today strikes from the supervisory category employees who control the day-to-day schedules and assignments of others, confining the category to those formally empowered to take tangible employment actions.”   Ginsberg, who read her dissent aloud, stated that the majority’s opinion is “blind to the realities of the workplace.”  The appropriate question, Ginsberg stated, is: “Has the employer give the alleged harasser authority to take tangible employment actions or to control the conditions under which subordinates do their daily work?  If the answer to either inquiry is yes, vicarious liability is in order, for the superior-subordinate working arrangement facilitating the harassment is of the employer’s making.”  Ginsberg continued, finding that “in so restricting the definition of supervisor, the Court once again shuts from sight the ‘robust protection against workplace discrimination Congress intended Title VII to secure.”  The Court’s definition has “shifted in a decidedly employer-friendly direction”; “a realignment that will leave many harassment victims without an effective remedy and undermine Title VII’s capacity to prevent workplace harassment.”

Calling on Congress, Ginsberg announced: “The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.”