Ellen Tabby, an African-American, has worked for Binge and Purr, a cat food manufacturing company, for several years.  Tabby reports to Stephanie Schnauzer, who is white. Tabby and Schnauzer argue like cats and dogs. Tabby is convinced that Schnauzer’s poor attitude toward her is rooted in the fact that Tabby is African-American.   Although Schnauzer directs Tabby’s daily work, she does not have the power to take tangible employment actions (e.g. hire, fire, demote, promote, transfer, etc.).  Initially a scaredy-cat about discussing the matter, Tabby decided last month to let the cat out of the bag. She complained to HR that Schnauzer gives her a “hard time” by providing her with bad assignments, glaring at her, slamming equipment around her and generally intimidating her.  Tabby sued Binge and Purr claiming discrimination under Title VII and alleging that Schnauzer created a racially hostile work environment.  Can Binge and Purr be held vicariously liable for Schnauzer’s actions?

Probably not.  Title VII makes it easier to hold a company vicariously liable for the actions of its employees, if the harasser is considered a “supervisor” as a supervisor is thought to be an extension of management.  Recently the U.S. Supreme Court held that if an employee like Schnauzer has no authority to impose tangible employment actions, the employee cannot be considered a “supervisor.” Therefore, Binge and Purr is not vicariously liable for alleged harassment.  The Supremes specifically rejected the EEOC’s current definition of “supervisor” as someone merely with the ability to exercise significant direction over another’s daily work.  Although the Court’s ruling was hailed as very favorable to employers, Tabby can still claim Binge and Purr was negligent in handling her complaint about Schnauzer’s harassing behavior (e.g. that Binge and Purr knew or should have known that unlawful harassment was occurring but failed to take appropriate action).[1]

Tilting the Scales in Your Favor:

The Vance definition of supervisor can readily be applied to benefit businesses that carefully review and revise job descriptions to ensure that only key personnel have the ability to take tangible employment actions.  Limiting the number of “supervisors” will reduce the likelihood that a company will be held vicariously liable.  Businesses, however, must remain vigilant in investigating, auditing and taking action to ensure claims of discrimination, harassment and retaliation are appropriately handled.

[1] Vance v. Ball State University, 646 F. 3d 461, http://www.law.cornell.edu/supremecourt/text/11-556,