Under Title VII, an employer may be liable for the workplace harassment of employees that is based on sex, race, religion or national origin. The standard for liability often begins with the employment position of the alleged harasser. When the harasser is a co-worker, a plaintiff must show that the company had knowledge of continuous and pervasive harassing behavior and failed to take remedial action. Additionally, an employer can defend a claim by proving that an employee failed to utilize available corrective measures such as an internal HR complaint procedure.
However, when the alleged harasser is a supervisor, the standard for liability changes if the supervisor takes a tangible, adverse action against an employee. In such cases, an employer may be vicariously liable for the conduct of its supervisors. In Vance v. Ball St. University (April 2013), the U.S. Supreme Court provides clarification regarding the very definition of a supervisor under Title VII. In a 5-4 decision, Vance holds that an employee is a supervisor “if he or she is empowered by the employer 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.” Inversely stated, a supervisor is not someone who merely has some nebulous authority to instruct or direct another person in the performance of their duties.