In its prologue to yesterday's Supreme Court opinion in Vance v. Ball. St. Univ. [pdf] [an enhanced version of this opinion is available to lexis.com
subscribers], Justice Alito, writing for the five-member majority,
frames the importance of the issue facing the Court:
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. In cases in which the harasser is a
"supervisor," however, different rules apply. If the supervisor's harassment
culminates in a tangible employment action, the employer is strictly liable.
But if no tangible employment action is taken, the employer may escape
liability by establishing, as an affirmative defense, that (1) the employer exercised
reasonable care to prevent and correct any harassing behavior and (2) that the
plaintiff unreasonably failed to take advantage of the preventive or
corrective opportunities that the employer provided. Under this framework
therefore, it matters whether a harasser is a "supervisor" or simply a
Ultimately, the Court held that to qualify as a
supervisor for purposes of vicarious liability for harassment, one must be able
to impart a "significant change in [the] employment status" of the plaintiff:
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."
Make no mistake, this is a huge victory for employers.
Vicarious liability for unlawful harassment is a huge problem for employers. It
means that that if the unlawful harassment occurred, the employer is liable,
whether or not it knew about it, should have known about, or even took efforts
to stop it from occurring. This case limits that vicarious liability only to
those are in an actual position to affect the plaintiff's terms and conditions
The majority made it clear that it was drawing this
bright line to aid parties embroiled in harassment litigation:
The interpretation of the concept of a supervisor that we
adopt today is one that can be readily applied. In a great many cases, it will
be known even before litigation is commenced whether an alleged harasser was a
supervisor, and in others, the alleged harasser's status will be come clear
to both sides after discovery. And once this is known, the parties will be in a
position to assess the strength of a case and to explore the possibility of
resolving the dispute. Where this does not occur, supervisor status will
generally be capable of resolution at summary judgment.
In other words, the court's bright-line rule is meant to
weed out for resolution those cases in which vicarious liability exists. As Kevin Russell correctly pointed out at SCOTUSblog, these
cases "will provide judges greater authority to prevent the case from getting
to a jury in the first place."
To ensure that employers avail themselves of the benefits
of this decision as often as possible, it is best that businesses review
organizational charts, chains of authority, and job descriptions.
Businesses should spell out, in detail, those supervisors who have the
authority to effect a "significant change in employment status." They should
also spell out which supervisors have the express authority to hire, fire,
demote, or reassign which employees. Businesses should spell out which
supervisors lack that authority. By establishing clear chains of authority,
employers will place themselves in the best position to limit the risk of
The importance of Vance as a win for employers
cannot be understated. When you couple this decision with the Court's
retaliation decision in Nassar [enhanced version], it's fair to say that yesterday, employers
had their best day in recent memory at the Supreme Court.
Visit the Ohio Employer's Law Blog for more
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