The Supreme Court Clarifies Who Is A Supervisor Under Title VII

In a 5-4 decision, the U.S. Supreme Court decided what the definition of a "supervisor" is for purposes of assessing liability for unlawful harassment under Title VII. The Court ruled that an employer will be vicariously liable for the actions of a supervisor "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, a decision causing a significant change in benefits.'" The majority found that this "workable" definition of supervisor will provide much needed guidance to employers and employees even before litigation begins.

A Brief History of the Law of Hostile Environment Harassment

Title VII protects employees against workplace discrimination based on a number of protected grounds, including race, color, religion, sex, or national origin.1 While the Supreme Court first recognized that a hostile work environment created by harassing behavior was a form of unlawful discrimination under Title VII in 1986,2 it was not until 1998 that the Court assessed for the first time under what circumstances an employer could be held responsible for the harassing behavior of its employees.

The Court issued two decisions on the same day -- Burlington Industries, Inc. v. Ellerth3 and Faragher v. City of Boca Raton4 -- in which it laid out three basic rules: (i) in cases where the hostile environment was created by a co-worker, the employer can be liable only if it knew or reasonably should have known about the harassment and failed to stop it;5 (ii) in those cases where a supervisor engaged in harassing behavior, coupled with a tangible adverse employment action, an employer can be held strictly liable;6 and, finally, (iii) in those cases where a supervisor was the harasser but no tangible adverse employment action was involved, an employer can be subject to vicarious liability for "an actionable hostile environment created by a supervisor with ... authority over the employee."7 Under this third scenario, however, liability would not be automatic; rather, an employer may establish a defense to liability if it can prove it exercised reasonable care to prevent and correct harassing behavior, and the employee claiming harm unreasonably failed to take advantage of any preventive or corrective opportunities that could have avoided or reduced the harm.8

Although the Supreme Court largely addressed both the type of liability and when liability might be imposed on employers in...