The risk of vicarious liability for harassment and hostile work environment looms a little less large as a result of a recent Supreme Court decision. Vance vs. Ball State University narrowed the definition of “supervisor.”

Employers should not jump to the conclusion that only supervisors can cause liability in harassment or discrimination cases. Employers have the duty to provide a healthy and respectful work environment.

The Supreme Court found Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth instructive landmark sexual harassment cases. These cases established the need for employers to demonstrate a well- communicated policy and complaint procedure, which the employee fails to use in order to avoid liability.

What caused these cases to be especially risky for employers was the Equal Employment Opportunity Commission’s broad definition of supervisor. The EEOC defines supervisor as having the authority to make decisions on behalf of the employer. A person who has authority to recommend actions that affect an employee’s employment status, such as hiring, firing, or demoting; or has authority to direct the employee’s daily work activities; or someone the employee reasonably believes has authority over him fit the EEOC’s definition.

Since the Faragher and Ellerth cases in 1998, courts have argued the definition of supervisor. In the Vance vs. Ball State University case, Ball State argued that it should not be liable because the alleged harasser was a co-worker. Maetta Vance, on the other hand, believed Saundra Davis was her supervisor because she controlled her daily activities.

The Supreme Court defined supervisors as having the power to “hire, fire, demote, promote, transfer or discipline another worker.” Davis did not have this level of authority.

Justice Samuel Alito delivered the decision that the employer’s liability for workplace harassment depends on the status of the harasser. The employer is liable if it was negligent in controlling working conditions if the victim’s co-worker was the harasser. If the harasser is the “supervisor,” and tangible employment action resulted, the employer is strictly liable. The employer may escape liability by establishing that it exercised reasonable care to prevent and correct any harassing behavior and the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Ball State took prompt and appropriate action every time Vance complained.

Because it was a 5:4 decision and involved an interpretation of Title VII, Justice Ginsberg’s dissent requested the matter move to Congress. In the meantime, employers and courts have a crisp definition of supervisor.

What all employers should do:


1. Determine which employees have the authority to create vicarious liability by reviewing job descriptions to clarify which positions fall under the definition of supervisor. If needed, revise job descriptions to ensure actual level of authority is noted.


2. Provide those employees training focused on their responsibility to assure a healthy work environment and how to respond should an allegation or observation of discrimination and/or harassment occur.


3. Assess your investigation procedures and practice.

Legislative Update

Pay or Play Delayed

The Pay or Play mandate of the Affordable Care Act is delayed one year. The mandate requires employers with 50 or more employees to offer affordable and adequate health coverage to full- time employees or be assessed an annual fee.
Full-time for these purposes is an average of 30 hours per week. Adequate is defined as covering at least 60% of the employees’ average medical costs. Affordable means the insurance can cost no more than 9.5% of the employee’s income.
Mark J. Mazur, US Treasury stated the delay will allow us to consider ways to simplify the new reporting requirements consistent with the law, and provide time to adapt health coverage and reporting systems. The delay also applies to shared responsibility payments.

But-For Causation

An employee will have to prove that illegal retaliation by the employer actually caused the harm that is alleged, as a result of a recent Supreme Court decision.
In, University of Texas Southwestern Medical Center v. Nassar Dr. Naiel Nassar claimed retaliation was a motivating factor for an adverse employment action. The Supreme Court’s decision flies in the face of the EEOC’s interpretation of Title VII; an employee could show retaliation by establishing that engaging in protected activity was “a” motivating factor.
But-for causation standard also applies to disparate treatment claims under the Age Discrimination in Employment Act.

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