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Clearer Employer Liability Standards for Title VII Supervisor Harassment and Retaliation Claims

By Alexis M. Dominguez

This summer, the Supreme Court issued a pair of important employer-friendly decisions. In Vance v. Ball State University, No. 11-556, 133 S. Ct. 2434, 2439 (Jun. 24, 2013), the Court resolved the question of who qualifies as a “supervisor” in a case in which an employee asserted a Title VII claim for workplace harassment. And in Univ. of Texas Sw. Med. Ctr. v. Nassar, No. 12-484, 133 S. Ct. 2517, 2522-23 (June 24, 2013), the Court clarified the standard of “causation” required to prove retaliation under Title VII.

The question addressed in Vance is important to employers because employer liability for harassment under Title VII may depend on whether the harasser is a supervisor. Employers are strictly liable for harassing conduct by supervisors that results in tangible employment action. But an employer can avail itself of certain defenses if the harassment is by a non-supervisory co-worker. Thus, whether the harasser is a supervisor is an important preliminary question in any suit alleging harassment under Title VII. Fortunately for employers, the Supreme Court construed “supervisor” narrowly to include individuals empowered to hire, fire, demote, promote, transfer or discipline other employees. While this clarified standard should assist employers in defending harassment claims, there are still steps employers should take to reduce their risk of liability.

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