In Vance V. Ball State University (June 24, 2013), the Supreme Court held that an employer can be held vicariously liable for supervisory harassment under Title VII only if the supervisor is empowered by the employer to take tangible employment action against the victim. This ruling clarifies the supervisor vicarious liability standard previously established in prior Supreme Court decisions (Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth).

The Supreme Court ruled in Vance v. Ball State University that there is a distinction between supervisors and coworkers, based on the supervisor’s ability to make tangible employment decisions. The Supreme Court rejected the ambiguous and murky definition of the term “supervisor” found in the EEOC’s Enforcement Guidance, and held that the “ability to direct another employee’s tasks is simply insufficient” to warrant vicarious liability on the part of the employer. The Supreme Court’s decision in Vance, thus limits supervisor vicarious liability for harassment under Title VII to those supervisors who have the power to take tangible employment actions—such as the power to hire, fire, demote, transfer, and discipline.

As a result of the Vance ruling, employers should evaluate which of their employees can potentially create vicarious liability for the employer based on the employee’s potential supervisory roles and responsibility. Employers should ensure that their “supervisors” are clearly identified as such to all employees; that supervisors’ job descriptions are clear, concise, and accurate; and that supervisors are well-trained with respect to employment law, company policies prohibiting harassment and discrimination, and their supervisory obligations and responsibilities.