In two 5-4 decisions under Title VII of the Civil Rights Act of 1964, the U.S. Supreme Court has defined new standards for who qualifies as a "supervisor" in employment workplace harassment cases, thereby changing the standard now applied in the Second Circuit. At the same time, the Court has increased an employee's burden of proof for employment retaliation lawsuits.
In Vance v. Ball State University, No. 11-556 (June 24, 2013), in an opinion written by Justice Samuel Alito, the Court ruled that an employer is strictly liable for harassment suffered by an employee when the harassment is caused by a supervisor who is empowered to take tangible employment actions, and the harassment culminates in a tangible employment action, such as hiring, firing, demoting, promoting, transferring or disciplining an employee. If the harassing employee is the victim's co-worker, and not a supervisor, then the employer is liable only if it was negligent for not controlling the harassing behavior, or, in other words, if it knew or should have known of the harassment and failed to take corrective action. If no tangible employment action is taken against the victim, the employer may escape liability if it establishes that: (1) it exercised reasonable care to prevent and correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.
