Who Is A 'Supervisor' Under Title VII And Why You Should Care

Oral Argument in Vance v. Ball State University Takes an Unexpected Turn

Late last month the U.S. Supreme Court heard oral argument in Vance v. Ball State University, No. 11-556. The issue that Vance is expected to decide is how much authority over other workers an employee must be given to be considered a "supervisor" under Title VII. While the question may appear to be of academic interest, how it is answered actually will have great practical importance for employers given the lack of a consistent answer from the courts.

Some Background

The question of who is considered a supervisor arises consistently under Title VII and other employment laws in deciding whether an employer should be held responsible for the unlawful act by one employee against another. In other words, whether the employer is liable for an employee's harassment of or other discrimination against another employee can depend on whether the alleged wrongdoer should be considered a supervisor. The concept of employer responsibility for the wrongdoing of an employee is referred to by lawyers and the courts as "vicarious liability." Not surprisingly, it often is a key issue in harassment cases. Indeed, whether and in what circumstances to hold an employer liable for sexual harassment was central to the Supreme Court's trail blazing decisions in the sexual harassment area. First, in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), where the Court held that both quid pro quo and hostile working environment sexual harassment claims can be brought under Title VII, it directed that traditional "agency" principles, which are used in most other contexts to determine employer liability for the acts of employees, also be used to determine employer liability in Title VII harassment cases.

Then, a dozen years later in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the Court built on its embrace of agency principles in Vinson and held that employer liability for unlawful harassment of an employee by a supervisor is automatic, but where the wrongdoer is a non-supervisory co-worker instead, the employer's responsibility depends on whether it can establish affirmative defenses that the Court spelled out. However, it was easier for the Supreme Court to articulate the Faragher/Ellerth rule than it has been for the lower courts to apply it. As it has turned out, the question the Supreme Court identified as determining...