In Vance v. Ball State University, the Supreme Court decided a question left open by Burlington Industries, Inc. v.Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998).  The question that was brought before the court was: who qualifies as a "supervisor" in a Title VII claim by an employee for workplace harassment?



Under Title VII, an employer’s liability for harassment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, 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. Id., at 807; Ellerth, supra, at 765. In taking Burlington and Ellerth into consideration, it matters whether a harasser is a “supervisor” or simply a co-worker.

In Vance, the Supreme Court held that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.