The ruling was handed down on 6/24/13 [2013 U.S. LEXIS 4703]. The issue of whether an alleged harasser is a supervisor or co-worker is important because employers have vicarious liability for supervisors, but must know, or have a basis for knowing, that harassment occurred by a co-worker (i.e., reckless disregard). In either event, the employer has an affirmative defense for supervisors or known harassment by co-workers if (a) they have a policy to prevent and quickly correct harassment that (b) the employee unreasonably fails to take advantage of. These principles were established in 1998 in Burlington v. Ellerth [524 U.S. 742] and Faragher v. Boca Raton [524 U.S. 775].

At stake in Vance v. Ball State was the EEOC’s definition of supervisor, which has two prongs: (1) an individual authorized "to undertake or recommend tangible employment decisions affecting the employee," including "hiring, firing, promoting, demoting, and reassigning the employee"; or (2) an individual authorized "to direct the employee's daily work activities." Although most courts have accepted either prong of the EEOC’s definition, the 7th Circuit accepted only prong 1 and affirmed the district court’s ruling of summary judgment for the defendant, and the Supreme Court affirmed the 7th Circuit ruling. Speaking for Justices Kennedy, Roberts, Scalia, and Thomas, Justice Alito ruled:

We hold 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." …… We reject the nebulous definition of a "supervisor" advocated in the EEOC Guidance 4 and substantially adopted by several courts of appeals. Petitioner's reliance on colloquial uses of the term "supervisor" is misplaced, and her contention that our cases require the EEOC's abstract definition is simply wrong.

In her dissent, Justice Ginsburg, speaking for Justices Breyer, Kagan, and Sotomayor, forewarned, among other things, that:

The distinction Faragher and Ellerth drew between supervisors and co-workers corresponds to the realities of the workplace. Exposed to a fellow employee's harassment, one can walk away or tell the offender to "buzz off." A supervisor's slings and arrows, however, are not so easily avoided. An employee who confronts her harassing supervisor risks, for example, receiving an undesirable or unsafe work assignment or an unwanted transfer. She may be saddled with an excessive workload or with placement on a shift spanning hours disruptive of her family life. And she may be demoted or fired. Facing such dangers, she may be reluctant to blow the whistle on her superior, whose "power and authority invests his or her harassing conduct with a particular threatening character.”

More often than not, I act like the “court reporter” (excuse the pun) and stick to the facts of the case. However, here, I think, based on the Faragher ruling, the majority got it wrong because the supervisor lifeguards who harassed Beth Faragher were not empowered to control the actual terms and conditions of her employment. Whether the supervisor in the Ellerth case had such powers is debatable, but unimportant, because the same exact rulings were rendered by the Supreme Court in both cases.

As a final point, there is a clear message here for employees who believe they are harassed. They need to complain, and, in doing so, shed the fear of retaliation because that, too, is actionable discrimination.

by Art Gutman, Ph.D., Professor, Florida Institute of Technology

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