Vance v. Ball State Univ. et al., 570 U.S. ____ (2013).


On June 24, 2013, the Supreme Court of the United States issued its decision in Vance v. Ball State University.  The Court had decided to hear the case in order to clarify the “supervisor” liability rule that it had established in 1998 in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth.  According to those cases, an employer is vicariously, and strictly, liable for a supervisor's workplace harassment of, and discriminatory conduct directed toward, employees. An employer, on the other hand, is vicariously liable for harassment or discrimination inflicted by employees' co-workers only if the employer was negligent in either discovering or remedying the offending conduct. The later negligence standard is much more favorable to employers; therefore, whether an alleged harasser was a supervisor or not is often crucial to the defense of an employment discrimination case.

In Vance, the Court was asked to resolve the question of who is a “supervisor” and specifically decide whether (i) it encompasses all individuals who have the authority to direct and oversee an employee’s daily work, or (ii) is limited only to those individuals who have the power to “hire, fire, demote, promote, transfer, or discipline” an employee.  The Court found that the latter definition described a supervisor, holding that a supervisor is a person empowered by an employer “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.’” Id. at 9 (slip opinion) (quoting Burlington Industries, Inc., 524 U.S. 742, 761 (1998)).

This Court found that this definition is one that can “readily be applied” and will therefore provide great assistance to litigators.  Now, in most 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 become clear to both sides after discovery.”  This resolution of a person’s status as a supervisor allows the parties to “assess the strength of a case and to explore the possibility of resolving the dispute” at an earlier date in the litigation.  Under the other approach, by contrast, the “supervisor status would very often be murky. . . .”  Id. at 20.

The Supreme Court’s adoption of a clear and uniform standard provides a good opportunity for employers to evaluate which of their employees are supervisors and should be targeted for additional training on their responsibilities for prevention and appropriate action when harassment occurs.  It also underscores the need for strong, regular training for all employees on a company’s anti-discrimination and harassment policies and the available mechanisms for an employee to make a complaint.