In 1998, the United States Supreme Court held that under Title VII of the Civil Rights Act, an employer is liable for harassment by a supervisor if the supervisor takes a tangible employment action against a subordinate or, in the absence of a tangible employment action, the supervisor creates a hostile work environment for which the employer is unable to establish an affirmative defense. One issue the Court did not address was who is a supervisor? In 2013, the Supreme Court addressed the definition of “supervisor” for purposes of employer liability for unlawful harassment under Title VII.
Since 1998, courts around the country had been split. Some courts, as well as the Federal Equal Employment Opportunity Commission, applied a broad definition of supervisor that included not only individuals who had the authority to undertake tangible employment actions (such as termination, demotion, pay cuts, etc.), but also individuals who could direct an employee’s daily work activities.
Other courts, including the Eighth Circuit where Minnesota sits, applied a narrower definition, limiting supervisors to individuals who had the authority to take tangible employment actions against an employee.
In Vance v. Ball State University, 133 S.Ct. 2434 (2013), the Supreme Court adopted the narrower definition, holding that “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.’”
The majority and dissent in Vance took turns taking shots at each other. The majority, in rejecting the broader definition, classified such a definition as “nebulous,” “murky,” and “a study in ambiguity.” The dissent expressed concern that by eliminating from the definition of “supervisor” those individuals who control subordinates’ daily schedule and work activities, many victims of harassment will not have an effective remedy. Justice Ginsburg expressly invited Congress to intervene “to correct this Court’s wayward interpretation of Title VII.”
Practice Pointer: Employers should maintain well drafted and up-to-date job descriptions. Employers should make it clear in those job descriptions (and, of course, in practice) which individuals have the authority to take tangible employment actions and which do not. The Supreme Court has now definitively stated that employees who do not possess such authority are not supervisors under Title VII.
Caution for Minnesota Employers: For purposes of harassment under the Minnesota Human Rights Act (“MHRA”), the Minnesota Supreme Court has adopted the EEOC’s broader definition of supervisor. Frieler v. Carlson Marketing Group, Inc., 751 N.W.2d 558 (Minn. 2008). So, at least for now, the standard for liability for harassment by a supervisor is different under the MHRA than it is under Title VII.
