The Effect of Vance v. Ball State in Title VII Litigation

Title VII has been in effect for over fifty years. For almost as long, however, employers, employees, and courts have struggled to anticipate, understand, and determine whether and to what extent employers are liable for the harassment of employees by other employees. In the 1998 cases of Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, the United States Supreme Court first addressed this issue. It held that employers are vicariously liable for unlawful harassment of employees by supervisors; when harassers are coworkers, employers are liable under a negligence standard only.

Since these cases, the status of the harasser as a coworker or a supervisor has become crucial for determining workplace liability. In 1999, the Equal Employment Opportunity Commission issued important guidance on this topic, announcing a test for determining vicarious supervisory liability: whether the harasser can take tangible employment actions or direct subordinates’ daily work activities.

In 2013, the Supreme Court narrowed this definition in Vance v. Ball State, holding that only employees who can take tangible employment actions—defined as “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”—are supervisors.

Critics of Vance caution that the narrowed “supervisor” definition will diminish protections for employees and hinder their ability to seek legal recourse for legitimate workplace harassment. To date, the legal scholarship has made blanket assertions to this effect. A handful of scholars have reviewed example cases to show how Vance has limited plaintiffs’ ability to succeed on hostile work environment claims. However, no article has analyzed Vance’s impact systematically, examining data to determine whether and to what extent the narrowed definition affects litigation outcomes.

This Article examines all Title VII harassment cases filed in federal court and reported on Westlaw in the five years following Vance that consider the supervisor issue. Specifically, it analyzes: (1) whether Title VII hostile work environment cases are dismissed because the harasser is not a supervisor; and (2) whether this issue would have been decided differently pre-Vance. Ultimately, the Article uses data to show how the narrowed definition impacts each stage of litigation and makes it more difficult for employees to win hostile work environment claims. The Article concludes with an analysis of the advantages and disadvantages of the Vance definition and a proposal for redefining “supervisor” in a way that adequately protects employees while ensuring transparency and reasonable parameters on liability. To date, this Article is the only scholarship to evaluate comprehensively whether and to what extent Vance has impeded plaintiffs’ success in Title VII hostile work environment litigation.

a. B.A., University of Kansas; J.D., Stanford Law School. I would like to thank Mary Kate Haworth, Steve Munch, Greg Rosenberg, and the staff of the University of Illinois Law Review for their editorial suggestions on this Article.

The full text of this Article is available to download as a PDF.