Supreme Court Clarifies Sexual Harassment Law

On June 24, 2013, the United States Supreme Court issued rulings in Vance v. Ball State University that provide valuable clarity in determining who will be considered a “supervisor” for purposes of harassment claims. The Court held that an employee may be considered a “supervisor” only when the employer has empowered the employee to take tangible employment action against the individual claiming harassment. In Vance, the Court ruled that the ability to take “tangible employment actions” against the complaining worker is the “defining characteristic” of supervisory status.

The distinction is important. Employers are exposed to substantially more risk of liability when a “supervisor” is accused of harassment. Under prior Court decisions, if a supervisor engaged in harassment that culminated in a tangible employment action, the employer was strictly liable for the supervisor’s actions. If harassment is committed by a non-supervisory co-worker, a claimant has a more difficult burden and must show that the employer was negligent in allowing the harassment in order to establish liability. With non-supervisory workers, the employer may also have an absolute defense to any claims if steps were taken to prevent or correct problems and the complaining worker unreasonably failed to take advantage of avenues for internal investigation and resolution.

Prior to Vance, federal appellate courts had been split on the method for determining supervisory status with some courts following a significantly broader test applied by the EEOC. Under the EEOC test, supervisory status depends on whether an individual is able to exercise significant direction of another’s day to day work. As stated by the Court in Vance, the EEOC test allows for “remarkable ambiguity” as determining whether an individual is a supervisor and inherently calls for a case-by-case determination heavily dependent on particular facts and circumstances.

This “remarkable ambiguity” was significant to the Court in rejecting the EEOC test and imposing the “tangible employment action” standard. In Vance, the majority expressed the expectation that a test requiring the ability to take “tangible employment action” would be easily workable, providing courts, employers and employees clarity for more efficient resolution of questions on supervisory status.

Going forward, employers should consider the following in light of the Vance decision:

• Employers should assess and clarify as necessary the authority of individuals who might qualify under the Vance test but are not clearly identified as “supervisors.” The key question is whether an individual has authority to impact another worker’s employment status including hiring, firing, promotion, and work assignments. Both employers and employees should know just who is a “supervisor” in light of Vance.

• Employers should ensure they have effective anti-harassment and anti-discrimination policies in place along with a procedure for presenting and investigating complaints of harassment or discrimination. Employers should also consider training all employees in the policies and what to do if there may be a violation.

• All employees qualifying as “supervisors” should be aware of their status as such and trained on anti-harassment and anti-discrimination practices. Taking steps to ensure that workers qualifying as “supervisors” know and apply best practices will help reduce both risk and complaints, and will help provide evidence to defeat any claims that may come.
This post was written by Patrick Pearce, a Member of OMW’s Employment and Labor Law Practice Group. He can be reached at This is a summary of a complex area of the law and is not legal advice and should not be relied on for any purpose.

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