Vance v. Ball State, 133 S.Ct. 2434 (2013) addresses the circumstances under which an employer (i.e. a company or government that employs workers) can be held responsible in a lawsuit if one of its employees harasses another. This is generally referred to as “vicarious liability” — when the employer company or government is liable for the actions of its employees. Vance discusses the differing standards of proof for holding a company responsible for harassment in its workplace. Which standard applies depends on whether the harassing employee qualifies as a “supervisor,” as the case defines that term, and whether the harassment at issue culminated in a tangible employment action.
The plaintiff in Vance, an African-American woman, sued her employer, Ball State University, alleging that a fellow employee, Davis, violated Title VII of the Civil Rights Act through physical and verbal acts of racial harassment, thereby creating a racially hostile work environment. The District Court granted summary judgment to Ball State. It held that Ball State was not vicariously liable for Davis’ alleged actions because Davis, who lacked the authority to take tangible employment actions against Vance, was not a supervisor. The Seventh Circuit affirmed this decision, as did the Supreme Court.
In so holding, the Court articulated differing standards of proof for holding an employer liable for harassment in the workplace.
Co-Worker Harassment: Negligence
Under one approach, if the harassing employee was the victim’s co-worker, the employer can be held responsible (i.e. lose a lawsuit, and have to compensate the victim for the harassment he or she suffered at work) if the employer was negligent in allowing the harassment to take place. In other words, the employer can be liable for co-worker harassment if the company knew or should have known that the harassment would take place or was taking place, but did not take adequate steps to prevent or stop it.
Under another approach — the primary topic of the decision in Vance — an employer can be held strictly liable or responsible for harassment by any of its “supervisors” against subordinate employees. This presents the question of what kind of employee constitutes a “supervisor” for the purposes of holding the employer responsible for that employee’s harassment of another worker. In Vance, the Supreme Court held that an employee is a “supervisor” for purposes of vicarious liability under Title VII only if he is empowered by the employer to take “tangible employment actions” against the victim. A tangible employment action means “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.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
In so defining “supervisor,” the Court rejected various colloquial meanings of the term, and determined the concept was best understood by looking to the employer / employee framework set out in Title VII and the Court’s prior decisions in Ellerth and Faragher v. Boca Raton, 524 U.S. 775, 807 (1998).
Supervisor Harassment I: Strict Liability for Harassment Resulting in a Tangible Employment Action
The Vance Court further decided that if a supervisor’s harassment culminates in a “tangible employment action”, then the employer is strictly liable for the harassment. For example, if a supervisor demoted or fired a subordinate because she refused his sexual advances, the employer is responsible for that harassment — regardless of whether anyone at the company other than the harassing supervisor and the victim knew about the harassment.
Supervisor Harassment II: In the Absence of a Tangible Employment Action, Employer May Escape Liability with Faragher / Ellerth Defense
The Vance Court also discussed the standard for holding an employer liable for supervisor harassment when the harassment does not result in a tangible employment action. Under those circumstances, the Court explained , the employer may escape liability for the harassment if it can establish, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. This affirmative defense was described at length in previous Supreme Court cases Faragher v. Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 765 (1998). This is significant, because when the harasser is a supervisor the burden of proof is on the employer to prove this defense, as opposed to the situation where the harasser was a co-worker, in which case the victim has the burden of proving the employer was negligent in controlling working conditions. If the employer cannot prove the Faragher / Ellerth defense or another defense, it will generally be liable for the supervisor’s harassment.
As noted above, if the harassing employee does not qualify as a supervisor and is instead just a rank-and-file co-worker, Vance says that to hold the employer liable, the harassment victim can show that the employer was negligent in controlling working conditions and allowing a work environment where harassment could take place. But as explained Vance, it is generally easier for the victim of harassment to prevail against an employer if the harasser is considered a “supervisor” rather than a just “co-worker.” This is because the employer is strictly liable for a supervisor’s harassment — liable without proof of negligence — if the harassment results in a tangible employment action, or if the employer is unable to meet its burden of proof to establish the Faragher / Ellerth defense.
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