On June 24, 2013, the United States Supreme Court clarified two ambiguous areas in employment law which may make it more difficult for an employee to make a charge of harassment or retaliation against his or her employer. Title VII of the Civil Rights Act allows harassment victims to hold their employer vicariously liable for a supervisor’s improper conduct. If a supervisor harassed an employee, then the employer would be responsible, whether or not the employer knew about the supervisor’s actions, should have known about it, or even if they took efforts to stop the conduct. However, the Supreme Court failed to define who a “supervisor” was, until now. Furthermore, what some are labeling as “employment law-reform,” the Supreme Court ruled that employees need to show a new causation standard when bringing a retaliation claim against their employer. These rulings are significant because it will drastically shape the ability of employees to bring claims of harassment and retaliation against an employer.


In Vance v. Ball State University, the Court determined that an employee is a “supervisor” if he or she is empowered by the employer to make tangible employment actions for other employees. A “tangible employment action” is one where there is “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.” Therefore, a supervisor must be someone more than an employee who simply controls the workflow of another employee in order for the employer to be strictly liable for a supervisor’s wrongful action. This case insulates employers from vicarious liability in harassment claims brought against employees who are not in an actual position to affect another employee’s terms and conditions of employment.


Prior to this case, all an employee had to show for a successful retaliation claim was that the retaliation for a protected activity was just one motivating factor in a significant change in job status for the employee. For example, if an employee made a discrimination claim, then that claim is a protected activity and the employer cannot retaliate against the employee. If, after the employee made the discrimination claim, the employer demoted the employee, then the employee could also assert an additional claim for retaliation. The employee could prove retaliation by showing that engaging in the protected activity (the discrimination claim) was just one reason the employer demoted the employee, even if the employer could demonstrate other legitimate reasons for the demotion—such as tardiness. Recently, the Court determined in University of Texas Southwestern Medical Center v. Nassar, that in order to bring a retaliation claim against an employer, the employee must show a causal link between the employee’s injury and the wrongful conduct alleged. Therefore, the employee must prove that the employer would not have significantly changed the employee’s job status “but for” the existence of an improper motive. The opposing Justices agreed that this standard makes it more difficult for employees to prove retaliation—thus providing more protection to employers.


During these proceedings, the Supreme Court recognized that Title VII claims filed with the Equal Employment Opportunity Commission (the EEOC) have almost doubled in the past 15 years. The Supreme Court believes one benefit in narrowing the causation standard in retaliation claims was to limit the filing of frivolous lawsuits. Frivolous lawsuits “exhaust the resources of the employer, administrative agencies, and … the courts.” Furthermore, the Court in Vance reaffirmed this benefit when narrowing the definition of “supervisor.” Having a precise definition of “supervisor” will make it easier to evaluate a claim of harassment for merit. Even when the question of supervisor is unclear, then the issue can be handled early in litigation via a motion. Therefore, two concepts for employers to take away from these decisions are: (1) employers can now more easily determine if a harassment claim brought by an employee in a leadership role will expose the employer to a claim for vicarious liability; and (2) when an employee engages in a protected activity, employers can now more easily take actions which significantly change an employee’s status without such actions being classified as retaliatory.


The narrowing of these standards does not mean that the employer is invincible. An employer may still be liable for both supervisor and co-employee actions under Title VII. Although this is a huge win for employers, further steps may still be required to protect the business from a legal proceeding.

  1. Firmly establish which employees are supervisors and which employees are not supervisors. Remember, those employees who have the authority to change another employee’s job status are supervisors.
  2. Address the title of employees who are not really supervisors, but at times have leadership responsibilities and can direct the work of other employees.
  3. Certain actions by supervisors and co-workers may still create employer liability should a lawsuit arise. Ensure that the company has a discrimination, retaliation, and harassment policy and that all individuals—supervisors and co-workers—are aware of the policy and follow the policy.

Please contact a Gjording Fouser lawyer if you would like any additional information about this topic or any other employment issues facing your company.