Vance v. Ball State Univ. ( 2013 )

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
VANCE v. BALL STATE UNIVERSITY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 11–556. Argued November 26, 2012—Decided June 24, 2013
Under Title VII, an employer’s liability for workplace 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 har-
assment culminates in a tangible employment action (i.e., “a signifi-
cant 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,” Burlington In-
dustries, Inc. v. Ellerth, 524 U. S. 742, 761), 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. Faragher v. Boca Raton, 524 U. S. 775, 807;
Ellerth, supra, at 765.
Petitioner Vance, an African-American woman, sued her employer,
Ball State University (BSU) alleging that a fellow employee, Saundra
Davis, created a racially hostile work environment in violation of Ti-
tle VII. The District Court granted summary judgment to BSU. It
held that BSU was not vicariously liable for Davis’ alleged actions be-
cause Davis, who could not take tangible employment actions against
Vance, was not a supervisor. The Seventh Circuit affirmed.
Held: An employee is a “supervisor” for purposes of vicarious liability
under Title VII only if he or she is empowered by the employer to
take tangible employment actions against the victim. Pp. 9–30.
(a) Petitioner errs in relying on the meaning of “supervisor” in gen-
2 VANCE v. BALL STATE UNIV.
Syllabus
eral usage and in other legal contexts because the term has varying
meanings both in colloquial usage and in the law. In any event, Con-
gress did not use the term “supervisor” in Title VII, and the way to
understand the term’s meaning for present purposes is to consider
the interpretation that best fits within the highly structured frame-
work adopted in Faragher and Ellerth. Pp. 10–14.
(b) Petitioner misreads Faragher and Ellerth in claiming that those
cases support an expansive definition of “supervisor” because, in her
view, at least some of the alleged harassers in those cases, whom the
Court treated as supervisors, lacked the authority that the Seventh
Circuit’s definition demands. In Ellerth, there was no question that
the alleged harasser, who hired and promoted his victim, was a su-
pervisor. And in Faragher, the parties never disputed the characteri-
zation of the alleged harassers as supervisors, so the question simply
was not before the Court. Pp. 14–18.
(c) The answer to the question presented in this case is implicit in
the characteristics of the framework that the Court adopted in
Ellerth and Faragher, which draws a sharp line between co-workers
and supervisors and implies that the authority to take tangible em-
ployment actions is the defining characteristic of a supervisor.
Ellerth, supra, at 762.
The interpretation of the concept of a supervisor adopted today is
one that can be readily applied. An alleged harasser’s supervisor sta-
tus will often be capable of being discerned before (or soon after) liti-
gation commences and is likely to be resolved as a matter of law be-
fore trial. By contrast, the vagueness of the EEOC’s standard would
impede the resolution of the issue before trial, possibly requiring the
jury to be instructed on two very different paths of analysis, depend-
ing on whether it finds the alleged harasser to be a supervisor or
merely a co-worker.
This approach will not leave employees unprotected against har-
assment by co-workers who possess some authority to assign daily
tasks. In such cases, a victim can prevail simply by showing that the
employer was negligent in permitting the harassment to occur, and
the jury should be instructed that the nature and degree of authority
wielded by the harasser is an important factor in determining negli-
gence. Pp. 18–25.
(d) The definition adopted today accounts for the fact that many
modern organizations have abandoned a hierarchical management
structure in favor of giving employees overlapping authority with re-
spect to work assignments. Petitioner fears that employers will at-
tempt to insulate themselves from liability for workplace harassment
by empowering only a handful of individuals to take tangible em-
ployment actions, but a broad definition of “supervisor” is not neces-
Cite as: 570 U. S. ____ (2013) 3
Syllabus
sary to guard against that concern. Pp. 25–26.
646 F. 3d 461, affirmed.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SCALIA, KENNEDY, and THOMAS, JJ., joined. THOMAS, J., filed a con-
curring opinion. GINSBURG, J., filed a dissenting opinion, in which
BREYER, SOTOMAYOR, and KAGAN, JJ., joined.
Cite as: 570 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–556
_________________
MAETTA VANCE, PETITIONER v. BALL STATE
UNIVERSITY
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 24, 2013]
JUSTICE ALITO delivered the opinion of the Court.
In this case, we decide a question left open in Burlington
Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Far-
agher v. Boca Raton, 524 U. S. 775 (1998), namely, who
qualifies as a “supervisor” in a case in which an employee
asserts a Title VII claim for workplace harassment?
Under Title VII, an employer’s liability for such har­
assment 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 “super-
visor,” however, different rules apply. If the supervisor’s
harassment culminates in a tangible employment action,
the employer is strictly liable. But if no tangible employ­
ment action is taken, the employer may escape liability by
establishing, as an affirmative defense, that (1) the em­
ployer exercised reasonable care to prevent and correct
any harassing behavior and (2) that the plaintiff unrea­
sonably failed to take advantage of the preventive or
corrective opportunities that the employer provided. Id.,
at 807; Ellerth, supra, at 765. Under this framework,
2 VANCE v. BALL STATE UNIV.
Opinion of the Court
therefore, it matters whether a harasser is a “supervisor”
or simply a co-worker.
We hold that an employee is a “supervisor” for purposes
of vicarious liability under Title VII if he or she is empow­
ered by the employer to take tangible employment actions
against the victim, and we therefore affirm the judgment
of the Seventh Circuit.
I
Maetta Vance, an African-American woman, began
working for Ball State University (BSU) in 1989 as a sub­
stitute server in the University Banquet and Catering
division of Dining Services. In 1991, BSU promoted Vance
to a part-time catering assistant position, and in 2007 she
applied and was selected for a position as a full-time cater­
ing assistant.
Over the course of her employment with BSU, Vance
lodged numerous complaints of racial discrimination and
retaliation, but most of those incidents are not at issue
here. For present purposes, the only relevant incidents
concern Vance’s interactions with a fellow BSU employee,
Saundra Davis.
During the time in question, Davis, a white woman, was
employed as a catering specialist in the Banquet and
Catering division. The parties vigorously dispute the
precise nature and scope of Davis’ duties, but they agree
that Davis did not have the power to hire, fire, demote,
promote, transfer, or discipline Vance. See No. 1:06–cv–
1452–SEB–JMS, 2008 WL 4247836, *12 (SD Ind., Sept.
10, 2008) (“Vance makes no allegations that Ms. Davis
possessed any such power”); Brief for Petitioner 9–11
(describing Davis’ authority over Vance); Brief for Re­
spondent 39 (“[A]ll agree that Davis lacked the author-
ity to take tangible employments [sic] actions against
petitioner”).
In late 2005 and early 2006, Vance filed internal com­
Cite as: 570 U. S. ____ (2013) 3
Opinion of the Court
plaints with BSU and charges with the Equal Employ­
ment Opportunity Commission (EEOC), alleging racial
harassment and discrimination, and many of these com­
plaints and charges pertained to Davis. 646 F. 3d 461, 467
(CA7 2011). Vance complained that Davis “gave her a
hard time at work by glaring at her, slamming pots and
pans around her, and intimidating her.” Ibid. She alleged
that she was “left alone in the kitchen with Davis, who
smiled at her”; that Davis “blocked” her on an elevator and
“stood there with her cart smiling”; and that Davis often
gave her “weird” looks. Ibid. (internal quotation marks
omitted).
Vance’s workplace strife persisted despite BSU’s at­
tempts to address the problem. As a result, Vance filed
this lawsuit in 2006 in the United States District Court for
the Southern District of Indiana, claiming, among other
things, that she had been subjected to a racially hostile
work environment in violation of Title VII. In her com­
plaint, she alleged that Davis was her supervisor and that
BSU was liable for Davis’ creation of a racially hostile
work environment. Complaint in No. 1:06–cv–01452–
SEB–TAB (SD Ind., Oct. 3, 2006), Dkt. No. 1, pp. 5–6.
Both parties moved for summary judgment, and the
District Court entered summary judgment in favor of
BSU. 2008 WL 4247836, at *1. The court explained that
BSU could not be held vicariously liable for Davis’ alleged
racial harassment because Davis could not “ ‘hire, fire,
demote, promote, transfer, or discipline’ ” Vance and, as a
result, was not Vance’s supervisor under the Seventh
Circuit’s interpretation of that concept. See id., at *12
(quoting Hall v. Bodine Elect. Co., 276 F. 3d 345, 355 (CA7
2002)). The court further held that BSU could not be
liable in negligence because it responded reasonably to the
incidents of which it was aware. 2008 WL 4247836, *15.
The Seventh Circuit affirmed. 646 F. 3d 461. It ex­
plained that, under its settled precedent, supervisor status
4 VANCE v. BALL STATE UNIV.
Opinion of the Court
requires “ ‘the power to hire, fire, demote, promote, trans­
fer, or discipline an employee.’ ” Id., at 470 (quoting Hall,
supra, at 355). The court concluded that Davis was not
Vance’s supervisor and thus that Vance could not recover
from BSU unless she could prove negligence. Finding that
BSU was not negligent with respect to Davis’ conduct, the
court affirmed. 646 F. 3d, at 470–473.
II
A
Title VII of the Civil Rights Act of 1964 makes it “an
unlawful employment practice for an employer . . . to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employ­
ment, because of such individual’s race, color, religion, sex,
or national origin.” 42 U. S. C. §2000e–2(a)(1). This pro­
vision obviously prohibits discrimination with respect to
employment decisions that have direct economic conse­
quences, such as termination, demotion, and pay cuts.
But not long after Title VII was enacted, the lower courts
held that Title VII also reaches the creation or perpetua­
tion of a discriminatory work environment.
In the leading case of Rogers v. EEOC, 454 F. 2d 234(1971), the Fifth Circuit recognized a cause of action based
on this theory. See Meritor Savings Bank, FSB v. Vinson,
477 U. S. 57, 65–66 (1986) (describing development of
hostile environment claims based on race). The Rogers
court reasoned that “the phrase ‘terms, conditions, or
privileges of employment’ in [Title VII] is an expansive
concept which sweeps within its protective ambit the
practice of creating a working environment heavily
charged with ethnic or racial discrimination.” 454 F. 2d,
at 238. The court observed that “[o]ne can readily envision
working environments so heavily polluted with discrimi­
nation as to destroy completely the emotional and psy­
chological stability of minority group workers.” Ibid.
Cite as: 570 U. S. ____ (2013) 5
Opinion of the Court
Following this decision, the lower courts generally held that
an employer was liable for a racially hostile work environ-
ment if the employer was negligent, i.e., if the employer
knew or reasonably should have known about the harass­
ment but failed to take remedial action. See Ellerth, 524
U. S., at 768–769 (THOMAS, J., dissenting) (citing cases).
When the issue eventually reached this Court, we
agreed that Title VII prohibits the creation of a hostile
work environment. See Meritor, supra, at 64–67. In such
cases, we have held, the plaintiff must show that the work
environment was so pervaded by discrimination that the
terms and conditions of employment were altered. See,
e.g., Harris v. Forklift Systems, Inc., 510 U. S. 17, 21
(1993).
B
Consistent with Rogers, we have held that an employer
is directly liable for an employee’s unlawful harassment if
the employer was negligent with respect to the offensive
behavior. Faragher, 524 U. S., at 789. Courts have gen­
erally applied this rule to evaluate employer liability when
a co-worker harasses the plaintiff.1
In Ellerth and Faragher, however, we held that different
rules apply where the harassing employee is the plain-
tiff ’s “supervisor.” In those instances, an employer may be
vicariously liable for its employees’ creation of a hostile
work environment. And in identifying the situations in
which such vicarious liability is appropriate, we looked to
the Restatement of Agency for guidance. See, e.g., Meri-
——————
1 See, e.g., Williams v. Waste Management of Ill., 361 F. 3d 1021, 1029
(CA7 2004); McGinest v. GTE Serv. Corp., 360 F. 3d 1103, 1119 (CA9
2004); Joens v. John Morrell & Co., 354 F. 3d 938, 940 (CA8 2004);
Noviello v. Boston, 398 F. 3d 76, 95 (CA1 2005); Duch v. Jakubek, 588
F. 3d 757, 762 (CA2 2009); Huston v. Procter & Gamble Paper Prods.
Corp., 568 F. 3d 100, 104–105 (CA3 2009).
6 VANCE v. BALL STATE UNIV.
Opinion of the Court
tor, supra, at 72; Ellerth, supra, at 755.
Under the Restatement, “masters” are generally not
liable for the torts of their “servants” when the torts are
committed outside the scope of the servants’ employment.
See 1 Restatement (Second) of Agency §219(2), p. 481
(1957) (Restatement). And because racial and sexual
harassment are unlikely to fall within the scope of a serv­
ant’s duties, application of this rule would generally pre­
clude employer liability for employee harassment. See
Faragher, supra, at 793–796; Ellerth, supra, at 757. But
in Ellerth and Faragher, we held that a provision of the
Restatement provided the basis for an exception. Section
219(2)(d) of that Restatement recognizes an exception to
the general rule just noted for situations in which the
servant was “aided in accomplishing the tort by the exist­
ence of the agency relation.”2 Restatement 481; see Far-
agher, supra, at 802–803; Ellerth, supra, at 760–763.
Adapting this concept to the Title VII context, Ellerth
and Faragher identified two situations in which the aided­
in-the-accomplishment rule warrants employer liability
even in the absence of negligence, and both of these situa­
tions involve harassment by a “supervisor” as opposed to a
co-worker. First, the Court held that an employer is vicar­
iously liable “when a supervisor takes a tangible employ­
ment action,” Ellerth, supra, at 762; Faragher, supra, at
790—i.e., “a significant change in employment status, such
as hiring, firing, failing to promote, reassignment with
——————
2 The Restatement (Third) of Agency disposed of this exception to
liability, explaining that “[t]he purposes likely intended to be met by
the ‘aided in accomplishing’ basis are satisfied by a more fully elaborat­
ed treatment of apparent authority and by the duty of reasonable care
that a principal owes to third parties with whom it interacts through
employees and other agents.” 2 Restatement (Third) §7.08, p. 228
(2005). The parties do not argue that this change undermines our
holdings in Faragher and Ellerth.
Cite as: 570 U. S. ____ (2013) 7
Opinion of the Court
significantly different responsibilities, or a decision caus­
ing a significant change in benefits.” Ellerth, 524 U. S., at
761. We explained the reason for this rule as follows:
“When a supervisor makes a tangible employment deci­
sion, there is assurance the injury could not have been
inflicted absent the agency relation. . . . A tangible em­
ployment decision requires an official act of the enterprise,
a company act. The decision in most cases is documented
in official company records, and may be subject to review
by higher level supervisors.” Id., at 761–762. In those
circumstances, we said, it is appropriate to hold the em­
ployer strictly liable. See Faragher, supra, at 807; Ellerth,
supra, at 765.
Second, Ellerth and Faragher held that, even when
a supervisor’s harassment does not culminate in a tangible
employment action, the employer can be vicariously liable
for the supervisor’s creation of a hostile work environment
if the employer is unable to establish an affirmative de­
fense.3 We began by noting that “a supervisor’s power
and authority invests his or her harassing conduct with
a particular threatening character, and in this sense, a
——————
3 Faragher and Ellerth involved hostile environment claims premised
on sexual harassment. Several federal courts of appeals have held that
Faragher and Ellerth apply to other types of hostile environment
claims, including race-based claims. See Spriggs v. Diamond Auto
Glass, 242 F. 3d 179, 186, n. 9 (CA4 2001) (citing cases reflecting “the
developing consensus . . . that the holdings [in Faragher and Ellerth]
apply with equal force to other types of harassment claims under Title
VII”). But see Ellerth, 524 U. S., at 767 (THOMAS, J., dissenting) (stat­
ing that, as a result of the Court’s decision in Ellerth, “employer liabil­
ity under Title VII is judged by different standards depending upon
whether a sexually or racially hostile work environment is alleged”).
Neither party in this case challenges the application of Faragher and
Ellerth to race-based hostile environment claims, and we assume that
the framework announced in Faragher and Ellerth applies to cases such
as this one.
8 VANCE v. BALL STATE UNIV.
Opinion of the Court
supervisor always is aided by the agency relation.” El-
lerth, supra, at 763; see Faragher, 524 U. S., at 803–805.
But it would go too far, we found, to make employers
strictly liable whenever a “supervisor” engages in harass­
ment that does not result in a tangible employment action,
and we therefore held that in such cases the employer may
raise an affirmative defense. Specifically, an employer can
mitigate or avoid liability by showing (1) that it exercised
reasonable care to prevent and promptly correct any har­
assing behavior and (2) that the plaintiff unreasonably
failed to take advantage of any preventive or corrective
opportunities that were provided. Faragher, supra, at 807;
Ellerth, 524 U. S., at 765. This compromise, we ex-
plained, “accommodate[s] the agency principles of vicari­
ous liability for harm caused by misuse of supervisory
authority, as well as Title VII’s equally basic policies of
encouraging forethought by employers and saving action
by objecting employees.” Id., at 764.
The dissenting Members of the Court in Ellerth and
Faragher would not have created a special rule for cases
involving harassment by “supervisors.” Instead, they
would have held that an employer is liable for any em­
ployee’s creation of a hostile work environment “if, and
only if, the plaintiff proves that the employer was negli­
gent in permitting the [offending] conduct to occur.”
Ellerth, supra, at 767 (THOMAS, J., dissenting); Faragher,
supra, at 810 (same).
C
Under Ellerth and Faragher, it is obviously important
whether an alleged harasser is a “supervisor” or merely a
co-worker, and the lower courts have disagreed about the
meaning of the concept of a supervisor in this context.
Some courts, including the Seventh Circuit below, have
held that an employee is not a supervisor unless he or she
has the power to hire, fire, demote, promote, transfer, or
Cite as: 570 U. S. ____ (2013) 9
Opinion of the Court
discipline the victim. E.g., 646 F. 3d, at 470; Noviello v.
Boston, 398 F. 3d 76, 96 (CA1 2005); Weyers v. Lear Opera-
tions Corp., 359 F. 3d 1049, 1057 (CA8 2004). Other
courts have substantially followed the more open-ended
approach advocated by the EEOC’s Enforcement Guid­
ance, which ties supervisor status to the ability to exercise
significant direction over another’s daily work. See, e.g.,
Mack v. Otis Elevator Co., 326 F. 3d 116, 126–127 (CA2
2003); Whitten v. Fred’s, Inc., 601 F. 3d 231, 245–247 (CA4
2010); EEOC, Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (1999),
1999 WL 33305874, *3 (hereinafter EEOC Guidance).
We granted certiorari to resolve this conflict. 567 U. S.
___ (2012).
III
We hold that an employer may be vicariously liable for
an employee’s unlawful harassment only when the em­
ployer has empowered that employee to take tangible
employment actions against the victim, i.e., to effect a “sig­
nificant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a signifi­
cant change in benefits.” Ellerth, supra, at 761. We reject
the nebulous definition of a “supervisor” advocated in the
EEOC Guidance4 and substantially adopted by several
courts of appeals. Petitioner’s reliance on colloquial uses
——————
4 The United States urges us to defer to the EEOC Guidance. Brief
for United States as Amicus Curiae 26–29 (citing Skidmore v. Swift &
Co., 323 U. S. 134, 140 (1944)). But to do so would be proper only if the
EEOC Guidance has the power to persuade, which “depend[s] upon the
thoroughness evident in its consideration, the validity of its reasoning,
[and] its consistency with earlier and later pronouncements.” Id., at
140. For the reasons explained below, we do not find the EEOC Guid­
ance persuasive.
10 VANCE v. BALL STATE UNIV.
Opinion of the Court
of the term “supervisor” is misplaced, and her contention
that our cases require the EEOC’s abstract definition is
simply wrong.
As we will explain, the framework set out in Ellerth and
Faragher presupposes a clear distinction between supervi­
sors and co-workers. Those decisions contemplate a uni­
tary category of supervisors, i.e., those employees with the
authority to make tangible employment decisions. There
is no hint in either decision that the Court had in mind
two categories of supervisors: first, those who have such
authority and, second, those who, although lacking this
power, nevertheless have the ability to direct a co-worker’s
labor to some ill-defined degree. On the contrary, the
Ellerth/Faragher framework is one under which supervi­
sory status can usually be readily determined, generally
by written documentation. The approach recommended by
the EEOC Guidance, by contrast, would make the deter­
mination of supervisor status depend on a highly case­
specific evaluation of numerous factors.
The Ellerth/Faragher framework represents what the
Court saw as a workable compromise between the aided­
in-the-accomplishment theory of vicarious liability and the
legitimate interests of employers. The Seventh Circuit’s
understanding of the concept of a “supervisor,” with which
we agree, is easily workable; it can be applied without
undue difficulty at both the summary judgment stage and
at trial. The alternative, in many cases, would frustrate
judges and confound jurors.
A
Petitioner contends that her expansive understanding of
the concept of a “supervisor” is supported by the meaning
of the word in general usage and in other legal contexts,
see Brief for Petitioner 25–28, but this argument is both
incorrect on its own terms and, in any event, misguided.
In general usage, the term “supervisor” lacks a suffi­
Cite as: 570 U. S. ____ (2013) 11
Opinion of the Court
ciently specific meaning to be helpful for present purposes.
Petitioner is certainly right that the term is often used to
refer to a person who has the authority to direct another’s
work. See, e.g., 17 Oxford English Dictionary 245 (2d ed.
1989) (defining the term as applying to “one who inspects
and directs the work of others”). But the term is also
often closely tied to the authority to take what Ellerth
and Faragher referred to as a “tangible employment action.”
See, e.g., Webster’s Third New International Dictionary
2296, def. 1(a) (1976) (“a person having authority dele-
gated by an employer to hire, transfer, suspend, recall,
promote, assign, or discharge another employee or to rec-
ommend such action”).
A comparison of the definitions provided by two collo­
quial business authorities illustrates the term’s impreci­
sion in general usage. One says that “[s]upervisors are
usually authorized to recommend and/or effect hiring,
disciplining, promoting, punishing, rewarding, and other
associated activities regarding the employees in their
departments.”5 Another says exactly the opposite: “A
supervisor generally does not have the power to hire or
fire employees or to promote them.”6 Compare Ellerth,
524 U. S., at 762 (“Tangible employment actions fall with­
in the special province of the supervisor”).
If we look beyond general usage to the meaning of the
term in other legal contexts, we find much the same situa­
tion. Sometimes the term is reserved for those in the
upper echelons of the management hierarchy. See, e.g., 25
U. S. C. §2021(18) (defining the “supervisor” of a school
within the jurisdiction of the Bureau of Indian Affairs as
——————
5 http://www.businessdictionary.com/definition/supervisor.html (all In-
ternet materials as visited June 21, 2013, and available in Clerk of
Court’s case file).
6 http://management.about.com/od/policiesandprocedures/g/
supervisor1.html
12 VANCE v. BALL STATE UNIV.
Opinion of the Court
“the individual in the position of ultimate authority at a
Bureau school”). But sometimes the term is used to refer
to lower ranking individuals. See, e.g., 29 U. S. C.
§152(11) (defining a supervisor to include “any individual
having authority . . . to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action,
if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment”); 42
U. S. C. §1396n(j)(4)(A) (providing that an eligible Medicaid
beneficiary who receives care through an approved self­
directed services plan may “hire, fire, supervise, and man­
age the individuals providing such services”).
Although the meaning of the concept of a supervisor
varies from one legal context to another, the law often
contemplates that the ability to supervise includes the
ability to take tangible employment actions.7 See, e.g., 5
——————
7 One outlier that petitioner points to is the National Labor Relations
Act (NLRA), 29 U. S. C. §152(11). Petitioner argues that the NLRA’s
definition supports her position in this case to the extent that it encom­
passes employees who have the ability to direct or assign work to
subordinates. Brief for Petitioner 27–28.
The NLRA certainly appears to define “supervisor” in broad terms.
The National Labor Relations Board (NLRB) and the lower courts,
however, have consistently explained that supervisory authority is not
trivial or insignificant: If the term “supervisor” is construed too broadly,
then employees who are deemed to be supervisors will be denied rights
that the NLRA was intended to protect. E.g., In re Connecticut Hu-
mane Society, 358 NLRB No. 31, *33 (Apr. 12, 2012); Frenchtown
Acquisition Co., Inc. v. NLRB, 683 F. 3d 298, 305 (CA6 2012); Beverly
Enterprises-Massachusetts, Inc. v. NLRB, 165 F. 3d 960, 963 (CADC
1999). Indeed, in defining a supervisor for purposes of the NLRA,
Congress sought to distinguish “between straw bosses, leadmen, set-up
men, and other minor supervisory employees, on the one hand, and the
supervisor vested with such genuine management prerogatives as the
Cite as: 570 U. S. ____ (2013) 13
Opinion of the Court
CFR §§9701.511(a)(2), (3) (2012) (referring to a supervi­
sor’s authority to “hire, assign, and direct employees . . .
and [t]o lay off and retain employees, or to suspend, re-
——————
right to hire or fire, discipline, or make effective recommendations with
respect to such action.” S. Rep. No. 105, 80th Cong., 1st Sess., 4 (1947).
Cf. NLRB v. Health Care & Retirement Corp. of America, 511 U. S. 571,
586 (1994) (HCRA) (GINSBURG, J., dissenting) (“Through case-by-case
adjudication, the Board has sought to distinguish individuals exercising
the level of control that truly places them in the ranks of management,
from highly skilled employees, whether professional or technical, who
perform, incidentally to their skilled work, a limited supervisory role”).
Accordingly, the NLRB has interpreted the NLRA’s statutory definition
of supervisor more narrowly than its plain language might permit. See,
e.g., Connecticut Humane Society, supra, at *39 (an employee who
evaluates others is not a supervisor unless the evaluation “affect[s] the
wages and the job status of the employee evaluated”); In re CGLM, Inc.,
350 NLRB 974, 977 (2007) (“ ‘If any authority over someone else, no
matter how insignificant or infrequent, made an employee a super-
visor, our industrial composite would be predominantly supervisory.
Every order-giver is not a supervisor. Even the traffic director tells the
president of the company where to park his car’ ” (quoting NLRB v.
Security Guard Serv., Inc., 384 F. 2d 143, 151 (CA5 1967))). The NLRA
therefore does not define the term “supervisor” as broadly as petitioner
suggests.
To be sure, the NLRA may in some instances define “supervisor”
more broadly than we define the term in this case. But those differ­
ences reflect the NLRA’s unique purpose, which is to preserve the
balance of power between labor and management, see HCRA, supra, at
573 (explaining that Congress amended the NLRA to exclude supervi­
sors in order to address the “imbalance between labor and manage­
ment” that resulted when “supervisory employees could organize as
part of bargaining units and negotiate with the employer”). That
purpose is inapposite in the context of Title VII, which focuses on
eradicating discrimination. An employee may have a sufficient degree
of authority over subordinates such that Congress has decided that the
employee should not participate with lower level employees in the same
collective-bargaining unit (because, for example, a higher level employ­
ee will pursue his own interests at the expense of lower level employees’
interests), but that authority is not necessarily sufficient to merit
heightened liability for the purposes of Title VII. The NLRA’s defini­
tion of supervisor therefore is not controlling in this context.
14 VANCE v. BALL STATE UNIV.
Opinion of the Court
move, reduce in grade, band, or pay, or take other discipli­
nary action against such employees or, with respect to
filling positions, to make selections for appointments from
properly ranked and certified candidates for promotion or
from any other appropriate source”); §9701.212(b)(4) (de­
fining “supervisory work” as that which “may involve
hiring or selecting employees, assigning work, managing
performance, recognizing and rewarding employees, and
other associated duties”).
In sum, the term “supervisor” has varying meanings
both in colloquial usage and in the law. And for this
reason, petitioner’s argument, taken on its own terms, is
unsuccessful.
More important, petitioner is misguided in suggesting
that we should approach the question presented here as if
“supervisor” were a statutory term. “Supervisor” is not a
term used by Congress in Title VII. Rather, the term was
adopted by this Court in Ellerth and Faragher as a label
for the class of employees whose misconduct may give
rise to vicarious employer liability. Accordingly, the way
to understand the meaning of the term “supervisor” for
present purposes is to consider the interpretation that
best fits within the highly structured framework that
those cases adopted.
B
In considering Ellerth and Faragher, we are met at the
outset with petitioner’s contention that at least some of
the alleged harassers in those cases, whom we treated as
supervisors, lacked the authority that the Seventh Cir­
cuit’s definition demands. This argument misreads our
decisions.
In Ellerth, it was clear that the alleged harasser was a
supervisor under any definition of the term: He hired his
victim, and he promoted her (subject only to the minis-
terial approval of his supervisor, who merely signed the
Cite as: 570 U. S. ____ (2013) 15
Opinion of the Court
paperwork). 524 U. S., at 747. Ellerth was a case from
the Seventh Circuit, and at the time of its decision in that
case, that court had already adopted its current definition
of a supervisor. See Volk v. Coler, 845 F. 2d 1422, 1436
(1988). See also Parkins v. Civil Constructors of Ill., Inc.,
163 F. 3d 1027, 1033, n. 1 (CA7 1998) (discussing Circuit
case law). Although the en banc Seventh Circuit in
Ellerth issued eight separate opinions, there was no disa­
greement about the harasser’s status as a supervisor.
Jansen v. Packaging Corp. of America, 123 F. 3d 490(1997) (per curiam). Likewise, when the case reached this
Court, no question about the harasser’s status was raised.
The same is true with respect to Faragher. In that case,
Faragher, a female lifeguard, sued her employer, the city
of Boca Raton, for sexual harassment based on the conduct
of two other lifeguards, Bill Terry and David Silverman,
and we held that the city was vicariously liable for Terry’s
and Silverman’s harassment. Although it is clear that
Terry had authority to take tangible employment actions
affecting the victim,8 see 524 U. S., at 781 (explaining that
Terry could hire new lifeguards, supervise their work
assignments, counsel, and discipline them), Silverman
——————
8 The dissent suggests that it is unclear whether Terry would qualify
as a supervisor under the test we adopt because his hiring decisions
were subject to approval by higher management. Post, at 7, n. 1 (opin­
ion of GINSBURG, J.). See also Faragher, 524 U. S., at 781. But we have
assumed that tangible employment actions can be subject to such
approval. See Ellerth, 524 U. S., at 762. In any event, the record
indicates that Terry possessed the power to make employment deci­
sions having direct economic consequences for his victims. See Brief for
Petitioner in Faragher v. Boca Raton, O. T. 1997, No. 97–282, p. 9 (“No
one, during the twenty years that Terry was Marine Safety Chief, was
hired without his recommendation. [He] initiated firing and suspend­
ing personnel. [His] evaluations of the lifeguards translated into sal­
ary increases. [He] made recommendations regarding promotions . . .”
(citing record)).
16 VANCE v. BALL STATE UNIV.
Opinion of the Court
may have wielded less authority, ibid. (noting that Sil­
verman was “responsible for making the lifeguards’ daily
assignments, and for supervising their work and fitness
training”). Nevertheless, the city never disputed Far­
agher’s characterization of both men as her “supervisors.”
See App., O. T. 1997, No. 97–282, p. 40 (First Amended
Complaint ¶¶6–7); id., at 79 (Answer to First Amended
Complaint ¶¶6–7) (admitting that both harassers had
“supervisory responsibilities” over the plaintiff).9
In light of the parties’ undisputed characterization of
the alleged harassers, this Court simply was not presented
with the question of the degree of authority that an em­
ployee must have in order to be classified as a supervi­
sor.10 The parties did not focus on the issue in their briefs,
although the victim in Faragher appears to have agreed
that supervisors are employees empowered to take tangi­
ble employment actions. See Brief for Petitioner, O. T.
——————
9 Moreover, it is by no means certain that Silverman lacked the au­
thority to take tangible employment actions against Faragher. In her
merits brief, Faragher stated that, as a lieutenant, Silverman “made
supervisory and disciplinary decisions and had input on the evaluations
as well.” Id., at 9–10. If that discipline had economic consequences
(such as suspension without pay), then Silverman might qualify as a
supervisor under the definition we adopt today.
Silverman’s ability to assign Faragher significantly different work
responsibilities also may have constituted a tangible employment
action. Silverman told Faragher, “ ‘Date me or clean the toilets for a
year.’ ” Faragher, supra, at 780. That threatened reassignment of
duties likely would have constituted significantly different responsibili­
ties for a lifeguard, whose job typically is to guard the beach. If that
reassignment had economic consequences, such as foreclosing Far-
agher’s eligibility for promotion, then it might constitute a tangible
employment action.
10 The lower court did not even address this issue. See Faragher v.
Boca Raton, 111 F. 3d 1530, 1547 (CA11 1997) (Anderson, J., concur­
ring in part and dissenting in part) (noting that it was unnecessary to
“decide the threshold level of authority which a supervisor must possess
in order to impose liability on the employer”).
Cite as: 570 U. S. ____ (2013) 17
Opinion of the Court
1997, No. 97–282, p. 24 (“Supervisors typically exercise
broad discretionary powers over their subordinates, de­
termining many of the terms and conditions of their
employment, including their raises and prospects for pro-
motion and controlling or greatly influencing whether
they are to be dismissed”).
For these reasons, we have no difficulty rejecting petition-
er’s argument that the question before us in the present
case was effectively settled in her favor by our treatment
of the alleged harassers in Ellerth and Faragher.11
The dissent acknowledges that our prior cases do “not
squarely resolve whether an employee without power to
take tangible employment actions may nonetheless qualify
as a supervisor,” but accuses us of ignoring the “all-too­
plain reality” that employees with authority to control
their subordinates’ daily work are aided by that authority
in perpetuating a discriminatory work environment. Post,
at 8 (opinion of GINSBURG, J.). As Ellerth recognized,
however, “most workplace tortfeasors are aided in accom­
plishing their tortious objective by the existence of the
agency relation,” and consequently “something more” is
required in order to warrant vicarious liability. 524 U. S.,
at 760. The ability to direct another employee’s tasks is
——————
11 According to the dissent, the rule that we adopt is also inconsistent
with our decision in Pennsylvania State Police v. Suders, 542 U. S. 129(2004). See post, at 7–8. The question in that case was “whether a
constructive discharge brought about by supervisor harassment ranks
as a tangible employment action and therefore precludes assertion of
the affirmative defense articulated in Ellerth and Faragher.” Suders,
supra, at 140. As the dissent implicitly acknowledges, the supervi­
sor status of the harassing employees was not before us in that case.
See post, at 8. Indeed, the employer conceded early in the litigation
that the relevant employees were supervisors, App. in Pennsylvania
State Police v. Suders, O. T. 2003, No. 03–95, p. 20 (Answer ¶29),
and we therefore had no occasion to question that unchallenged
characterization.
18 VANCE v. BALL STATE UNIV.
Opinion of the Court
simply not sufficient. Employees with such powers are
certainly capable of creating intolerable work environ­
ments, see post, at 9–11 (discussing examples), but so are
many other co-workers. Negligence provides the better
framework for evaluating an employer’s liability when a
harassing employee lacks the power to take tangible em­
ployment actions.
C
Although our holdings in Faragher and Ellerth do not
resolve the question now before us, we believe that the
answer to that question is implicit in the characteristics of
the framework that we adopted.
To begin, there is no hint in either Ellerth or Faragher
that the Court contemplated anything other than a uni­
tary category of supervisors, namely, those possessing the
authority to effect a tangible change in a victim’s terms or
conditions of employment. The Ellerth/Faragher framework
draws a sharp line between co-workers and supervisors.
Co-workers, the Court noted, “can inflict psychologi-
cal injuries” by creating a hostile work environment, but
they “cannot dock another’s pay, nor can one co-worker
demote another.” Ellerth, 524 U. S., at 762. Only a su­
pervisor has the power to cause “direct economic harm” by
taking a tangible employment action. Ibid. “Tangible
employment actions fall within the special province of the
supervisor. The supervisor has been empowered by the
company as a distinct class of agent to make economic
decisions affecting other employees under his or her con­
trol. . . . Tangible employment actions are the means by
which the supervisor brings the official power of the en­
terprise to bear on subordinates.” Ibid. (emphasis added).
The strong implication of this passage is that the authori­
ty to take tangible employment actions is the defining
characteristic of a supervisor, not simply a characteristic
of a subset of an ill-defined class of employees who qualify
Cite as: 570 U. S. ____ (2013) 19
Opinion of the Court
as supervisors.
The way in which we framed the question presented
in Ellerth supports this understanding. As noted, the
Ellerth/Faragher framework sets out two circumstances
in which an employer may be vicariously liable for a su­
pervisor’s harassment. The first situation (which results
in strict liability) exists when a supervisor actually takes
a tangible employment action based on, for example, a
subordinate’s refusal to accede to sexual demands. The
second situation (which results in vicarious liability if the
employer cannot make out the requisite affirmative de­
fense) is present when no such tangible action is taken.
Both Ellerth and Faragher fell into the second category,
and in Ellerth, the Court couched the question at issue in
the following terms: “whether an employer has vicarious
liability when a supervisor creates a hostile work en-
vironment by making explicit threats to alter a subor­
dinate’s terms or conditions of employment, based on sex,
but does not fulfill the threat.” 524 U. S., at 754. This
statement plainly ties the second situation to a supervi­
sor’s authority to inflict direct economic injury. It is be­
cause a supervisor has that authority—and its potential
use hangs as a threat over the victim—that vicarious
liability (subject to the affirmative defense) is justified.
Finally, the Ellerth/Faragher Court sought a frame­
work that would be workable and would appropriately
take into account the legitimate interests of employers and
employees. The Court looked to principles of agency law
for guidance, but the Court concluded that the “malleable
terminology” of the aided-in-the-commission principle
counseled against the wholesale incorporation of that
principle into Title VII case law. Ellerth, 524 U. S., at 763.
Instead, the Court also considered the objectives of Title
VII, including “the limitation of employer liability in cer­
tain circumstances.” Id., at 764.
The interpretation of the concept of a supervisor that we
20 VANCE v. BALL STATE UNIV.
Opinion of the Court
adopt today is one that can be readily applied. In a great
many cases, it will be known even before litigation is
commenced whether an alleged harasser was a supervi­
sor, and in others, the alleged harasser’s status will be­
come clear to both sides after discovery. And once this is
known, the parties will be in a position to assess the
strength of a case and to explore the possibility of resolv­
ing the dispute. Where this does not occur, supervisor
status will generally be capable of resolution at summary
judgment. By contrast, under the approach advocated by
petitioner and the EEOC, supervisor status would very
often be murky—as this case well illustrates.12
According to petitioner, the record shows that Davis, her
alleged harasser, wielded enough authority to qualify as a
supervisor. Petitioner points in particular to Davis’ job
description, which gave her leadership responsibilities,
and to evidence that Davis at times led or directed Vance
and other employees in the kitchen. See Brief for Peti­
tioner 42–43 (citing record); Reply Brief 22–23 (same).
The United States, on the other hand, while applying the
same open-ended test for supervisory status, reaches the
opposite conclusion. At least on the present record, the
United States tells us, Davis fails to qualify as a supervi­
sor. Her job description, in the Government’s view, is not
dispositive, and the Government adds that it would not be
enough for petitioner to show that Davis “occasionally took
the lead in the kitchen.” Brief for United States as Amicus
Curiae 31 (U. S. Brief).
This disagreement is hardly surprising since the
——————
12 The dissent attempts to find ambiguities in our holding, see post,
at 15–16, and n. 5, but it is indisputable that our holding is orders of
magnitude clearer than the nebulous standard it would adopt. Em­
ployment discrimination cases present an almost unlimited number
of factual variations, and marginal cases are inevitable under any
standard.
Cite as: 570 U. S. ____ (2013) 21
Opinion of the Court
EEOC’s definition of a supervisor, which both petitioner
and the United States defend, is a study in ambiguity. In
its Enforcement Guidance, the EEOC takes the position
that an employee, in order to be classified as a supervisor,
must wield authority “ ‘of sufficient magnitude so as to as­
sist the harasser explicitly or implicitly in carrying out
the harassment.’ ” Id., at 27 (quoting App. to Pet. for Cert.
89a (EEOC Guidance)). But any authority over the work
of another employee provides at least some assistance, see
Ellerth, supra, at 763, and that is not what the United
States interprets the Guidance to mean. Rather, it in­
forms us, the authority must exceed both an ill-defined
temporal requirement (it must be more than “occa­
siona[l]”) and an ill-defined substantive requirement (“an
employee who directs ‘only a limited number of tasks or
assignments’ for another employee . . . would not have
sufficient authority to qualify as a supervisor.” U. S. Brief
28 (quoting App. to Pet. for Cert. 92a (EEOC Guidance));
U. S. Brief 31.
We read the EEOC Guidance as saying that the number
(and perhaps the importance) of the tasks in question is a
factor to be considered in determining whether an employ­
ee qualifies as a supervisor. And if this is a correct inter­
pretation of the EEOC’s position, what we are left with is
a proposed standard of remarkable ambiguity.
The vagueness of this standard was highlighted at oral
argument when the attorney representing the United
States was asked to apply that standard to the situation in
Faragher, where the alleged harasser supposedly threat­
ened to assign the plaintiff to clean the toilets in the life­
guard station for a year if she did not date him. 524 U. S.,
at 780. Since cleaning the toilets is just one task, albeit an
unpleasant one, the authority to assign that job would not
seem to meet the more-than-a-limited-number-of-tasks
requirement in the EEOC Guidance. Nevertheless, the
Government attorney’s first response was that the author­
22 VANCE v. BALL STATE UNIV.
Opinion of the Court
ity to make this assignment would be enough. Tr. of Oral
Arg. 23. He later qualified that answer by saying that it
would be necessary to “know how much of the day’s work
[was] encompassed by cleaning the toilets.” Id., at 23–24.
He did not explain what percentage of the day’s work
(50%, 25%, 10%?) would suffice.
The Government attorney’s inability to provide a de-
finitive answer to this question was the inevitable con-
sequence of the vague standard that the Government
asks us to adopt. Key components of that standard—
“sufficient” authority, authority to assign more than a
“limited number of tasks,” and authority that is exercised
more than “occasionally”—have no clear meaning. Apply­
ing these standards would present daunting problems for
the lower federal courts and for juries.
Under the definition of “supervisor” that we adopt to­
day, the question of supervisor status, when contested, can
very often be resolved as a matter of law before trial. The
elimination of this issue from the trial will focus the ef­
forts of the parties, who will be able to present their cases
in a way that conforms to the framework that the jury will
apply. The plaintiff will know whether he or she must
prove that the employer was negligent or whether the
employer will have the burden of proving the elements of
the Ellerth/Faragher affirmative defense. Perhaps even
more important, the work of the jury, which is inevitably
complicated in employment discrimination cases, will be
simplified. The jurors can be given preliminary instruc­
tions that allow them to understand, as the evidence
comes in, how each item of proof fits into the framework
that they will ultimately be required to apply. And even
where the issue of supervisor status cannot be eliminated
from the trial (because there are genuine factual disputes
about an alleged harasser’s authority to take tangible
employment actions), this preliminary question is rela-
tively straightforward.
Cite as: 570 U. S. ____ (2013) 23
Opinion of the Court
The alternative approach advocated by petitioner and
the United States would make matters far more compli­
cated and difficult. The complexity of the standard they
favor would impede the resolution of the issue before trial.
With the issue still open when trial commences, the par­
ties would be compelled to present evidence and argu­
ment on supervisor status, the affirmative defense, and the
question of negligence, and the jury would have to grapple
with all those issues as well. In addition, it would often be
necessary for the jury to be instructed about two very
different paths of analysis, i.e., what to do if the alleged
harasser was found to be a supervisor and what to do if
the alleged harasser was found to be merely a co-worker.
Courts and commentators alike have opined on the need
for reasonably clear jury instructions in employment
discrimination cases.13 And the danger of juror confusion
——————
13 See, e.g., Gross v. FBL Financial Services, Inc., 557 U. S. 167, 179
(2009); Armstrong v. Burdette Tomlin Memorial Hospital, 438 F. 3d
240, 249 (CA3 2006) (noting in the context of McDonnell Douglas Corp.
v. Green, 411 U. S. 792 (1973), that that “the ‘prima facie case and the
shifting burdens confuse lawyers and judges, much less juries, who do
not have the benefit of extensive study of the law on the subject’ ”
(quoting Mogull v. Commercial Real Estate, 162 N. J. 449, 471, 744
A. 2d 1186, 1199 (2000))); Whittington v. Nordam Group Inc., 429 F. 3d
986, 998 (CA10 2005) (noting that unnecessarily complicated instruc­
tions complicate a jury’s job in employment discrimination cases, and
“unnecessary complexity increases the opportunity for error”); Sanders
v. New York City Human Resources Admin., 361 F. 3d 749, 758 (CA2
2004) (“Making the burden-shifting scheme of McDonnell Douglas part
of a jury charge undoubtedly constitutes error because of the manifest
risk of confusion it creates”); Mogull, supra, at 473, 744 A. 2d, at 1200(“Given the confusion that often results when the first and second
stages of the McDonnell Douglas test goes to the jury, we recommend
that the court should decide both those issues”); Tymkovich, The
Problem with Pretext, 85 Denver Univ. L. Rev. 503, 527–529 (2008)
(discussing the potential for jury confusion that arises when in­
structions are unduly complex and proposing a simpler framework);
Grebeldinger, Instructing the Jury in a Case of Circumstantial Individ­
24 VANCE v. BALL STATE UNIV.
Opinion of the Court
is particularly high where the jury is faced with instruc­
tions on alternative theories of liability under which dif­
ferent parties bear the burden of proof.14 By simplifying
the process of determining who is a supervisor (and by
extension, which liability rules apply to a given set of
facts), the approach that we take will help to ensure that
juries return verdicts that reflect the application of the
correct legal rules to the facts.
Contrary to the dissent’s suggestions, see post, at 14, 17,
this approach will not leave employees unprotected
against harassment by co-workers who possess the author­
ity to inflict psychological injury by assigning unpleasant
tasks or by altering the work environment in objectionable
ways. In such cases, the victims will be able to prevail
simply by showing that the employer was negligent in
permitting this harassment to occur, and the jury should
be instructed that the nature and degree of authority
wielded by the harasser is an important factor to be con­
——————
ual Disparate Treatment: Thoroughness or Simplicity? 12 Lab. Law.
399, 419 (1997) (concluding that more straightforward instructions
“provid[e] the jury with clearer guidance of their mission”); Davis, The
Stumbling Three-Step, Burden-Shifting Approach in Employment
Discrimination Cases, 61 Brook. L. Rev. 703, 742–743 (1995) (discuss­
ing potential for juror confusion in the face of complex instructions);
Note, Toward a Motivating Factor Test for Individual Disparate
Treatment Claims, 100 Mich. L. Rev. 234, 262–273 (2001) (discussing
the need for a simpler approach to jury instructions in employment
discrimination cases).
14 Cf. Struve, Shifting Burdens: Discrimination Law Through the
Lens of Jury Instructions, 51 Boston College L. Rev. 279, 330–334
(2010) (arguing that unnecessary confusion arises when a jury must
resolve different claims under different burden frameworks); Monahan,
Cabrera v. Jakabovitz—A Common-Sense Proposal for Formulating
Jury Instructions Regarding Shifting Burdens of Proof in Disparate
Treatment Discrimination Cases, 5 Geo. Mason U. C. R. L. J. 55, 76
(1994) (“Any jury instruction that attempts to shift the burden of per­
suasion on closely related issues is never likely to be successful”).
Cite as: 570 U. S. ____ (2013) 25
Opinion of the Court
sidered in determining whether the employer was negli­
gent. The nature and degree of authority possessed by
harassing employees varies greatly, see post, 9–11 (offer­
ing examples), and as we explained above, the test pro­
posed by petitioner and the United States is ill equipped to
deal with the variety of situations that will inevitably
arise. This variety presents no problem for the negligence
standard, which is thought to provide adequate protection
for tort plaintiffs in many other situations. There is no
reason why this standard, if accompanied by proper in­
structions, cannot provide the same service in the context
at issue here.
D
The dissent argues that the definition of a supervisor
that we now adopt is out of touch with the realities of
the workplace, where individuals with the power to assign
daily tasks are often regarded by other employees as
supervisors. See post, at 5, 8–12. But in reality it is the
alternative that is out of touch. Particularly in modern
organizations that have abandoned a highly hierarchical
management structure, it is common for employees to
have overlapping authority with respect to the assignment
of work tasks. Members of a team may each have the
responsibility for taking the lead with respect to a particu­
lar aspect of the work and thus may have the responsibil­
ity to direct each other in that area of responsibility.
Finally, petitioner argues that tying supervisor status to
the authority to take tangible employment actions will
encourage employers to attempt to insulate themselves
from liability for workplace harassment by empowering
only a handful of individuals to take tangible employment
actions. But a broad definition of “supervisor” is not nec­
essary to guard against this concern.
As an initial matter, an employer will always be liable
when its negligence leads to the creation or continuation of
26 VANCE v. BALL STATE UNIV.
Opinion of the Court
a hostile work environment. And even if an employer
concentrates all decisionmaking authority in a few indi­
viduals, it likely will not isolate itself from heightened
liability under Faragher and Ellerth. If an employer does
attempt to confine decisionmaking power to a small num­
ber of individuals, those individuals will have a limited
ability to exercise independent discretion when making
decisions and will likely rely on other workers who actu-
ally interact with the affected employee. Cf. Rhodes v.
Illinois Dept. of Transp., 359 F. 3d 498, 509 (CA7 2004)
(Rovner, J., concurring in part and concurring in judg­
ment) (“Although they did not have the power to take
formal employment actions vis-à-vis [the victim], [the
harassers] necessarily must have had substantial input
into those decisions, as they would have been the people
most familiar with her work—certainly more familiar with
it than the off-site Department Administrative Services
Manager”). Under those circumstances, the employer may
be held to have effectively delegated the power to take
tangible employment actions to the employees on whose
recommendations it relies. See Ellerth, 524 U. S., at 762.
IV
Importuning Congress, post, at 21–22, the dissent
suggests that the standard we adopt today would cause
the plaintiffs to lose in a handful of cases involving shock­
ing allegations of harassment, see post, at 9–12. However,
the dissent does not mention why the plaintiffs would lose
in those cases. It is not clear in any of those examples
that the legal outcome hinges on the definition of “super­
visor.” For example, Clara Whitten ultimately did not
prevail on her discrimination claims—notwithstanding the
fact that the Fourth Circuit adopted the approach advo­
cated by the dissent, see Whitten v. Fred’s, Inc., 601 F. 3d
231, 243–247 (2010)—because the District Court subse­
quently dismissed her claims for lack of jurisdiction. See
Cite as: 570 U. S. ____ (2013) 27
Opinion of the Court
Whitten v. Fred’s, Inc., No. 8:08–0218–HMH–BHH, 2010
WL 2757005, *3 (D SC, July 12, 2010). And although the
dissent suggests that Donna Rhodes’ employer would have
been liable under the dissent’s definition of “supervisor,”
that is pure speculation: It is not clear that Rhodes suf­
fered any tangible employment action, see Rhodes v. Illi-
nois Dept. of Transp., 243 F. Supp. 2d 810, 817 (ND Ill.
2003), and no court had occasion to determine whether
the employer could have established the affirmative defense
(a prospect that is certainly feasible given that there
was evidence that the employer had an “adequate anti­
harassment policy in place,” that the employer promptly
addressed the incidents about which Rhodes complained,
and that “Rhodes failed to take advantage of the preventa­
tive or corrective opportunities provided,” Rhodes v. Illi-
nois Dept. of Transp., 359 F. 3d, at 507).15 Finally, the
dissent’s reliance on Monika Starke’s case is perplexing
given that the EEOC ultimately did obtain relief (in the
amount of $50,000) for the harassment of Starke,16 see
Order of Dismissal in No. 1:07–cv–0095–LRR (ND Iowa,
——————
15 Similarly, it is unclear whether Yasharay Mack ultimately would
have prevailed even under the dissent’s definition of “supervisor.” The
Second Circuit (adopting a definition similar to that advocated by the
dissent) remanded the case for the District Court to determine whether
Mack “ ‘unreasonably failed to take advantage of any preventative or
corrective opportunities provided by the employer or to avoid harm
otherwise.’ ” Mack v. Otis Elevator Co., 326 F. 3d 116, 127–128 (2003)
(quoting Ellerth, 524 U. S., at 765). But before it had an opportunity to
make any such determination, Mack withdrew her complaint and the
District Court dismissed her claims with prejudice. See Stipulation
and Order of Dismissal in No. 1:00–cv–7778–LAP (SDNY, Oct. 21,
2004), Dkt. No. 63.
16 Starke herself lacked standing to pursue her claims, see EEOC v.
CRST Van Expedited, Inc., 679 F. 3d 657, 678, and n. 14 (CA8 2012),
but the Eighth Circuit held that the EEOC could sue in its own name to
remedy the sexual harassment against Starke and other CRST employ­
ees, see id., at 682.
28 VANCE v. BALL STATE UNIV.
Opinion of the Court
Feb. 2, 2013), Dkt. No. 380, Exh. 1, ¶1, notwithstanding
the fact that the court in that case applied the definition of
“supervisor” that we adopt today, see EEOC v. CRST Van
Expedited, Inc., 679 F. 3d 657, 684 (CA8 2012).
In any event, the dissent is wrong in claiming that our
holding would preclude employer liability in other cases
with facts similar to these. Assuming that a harasser is
not a supervisor, a plaintiff could still prevail by showing
that his or her employer was negligent in failing to pre­
vent harassment from taking place. Evidence that an
employer did not monitor the workplace, failed to respond
to complaints, failed to provide a system for registering
complaints, or effectively discouraged complaints from
being filed would be relevant. Thus, it is not true, as the
dissent asserts, that our holding “relieves scores of em­
ployers of responsibility” for the behavior of workers they
employ. Post, at 14.
The standard we adopt is not untested. It has been the
law for quite some time in the First, Seventh, and Eighth
Circuits, see, e.g., Noviello v. Boston, 398 F. 3d 76, 96 (CA1
2005); Weyers v. Lear Operations Corp., 359 F. 3d 1049,
1057 (CA8 2004); Parkins v. Civil Constructors of Ill., Inc.,
163 F. 3d 1027, 1033–1034, and n. 1 (CA7 1998)—i.e., in
Arkansas, Illinois, Indiana, Iowa, Maine, Massachusetts,
Minnesota, Missouri, Nebraska, New Hampshire, North
Dakota, Rhode Island, South Dakota, and Wisconsin. We
are aware of no evidence that this rule has produced dire
consequences in these 14 jurisdictions.
Despite its rhetoric, the dissent acknowledges that
Davis, the alleged harasser in this case, would probably
not qualify as a supervisor even under the dissent’s pre­
ferred approach. See post, at 20 (“[T]here is cause to
anticipate that Davis would not qualify as Vance’s super­
visor”). On that point, we agree. Petitioner did refer to
Davis as a “supervisor” in some of the complaints that she
filed, App. 28; id., at 45, and Davis’ job description does
Cite as: 570 U. S. ____ (2013) 29
Opinion of the Court
state that she supervises Kitchen Assistants and Substi­
tutes and “[l]ead[s] and direct[s]” certain other employees,
id., at 12–13. But under the dissent’s preferred approach,
supervisor status hinges not on formal job titles or “paper
descriptions” but on “specific facts about the working
relationship.” Post, at 20–21 (internal quotation marks
omitted).
Turning to the “specific facts” of petitioner’s and Davis’
working relationship, there is simply no evidence that
Davis directed petitioner’s day-to-day activities. The record
indicates that Bill Kimes (the general manager of the
Catering Division) and the chef assigned petitioner’s
daily tasks, which were given to her on “prep lists.” No.
1:06–cv–1452–SEB–JMS, 2008 WL 4247836, *7 (SD Ind.,
Sept. 10, 2008); App. 430, 431. The fact that Davis some­
times may have handed prep lists to petitioner, see id., at
74, is insufficient to confer supervisor status, see App. to
Pet. for Cert. 92a (EEOC Guidance). And Kimes—not
Davis—set petitioner’s work schedule. See App. 431. See
also id., at 212.
Because the dissent concedes that our approach in this
case deprives petitioner of none of the protections that Ti-
tle VII offers, the dissent’s critique is based on nothing
more than a hypothesis as to how our approach might
affect the outcomes of other cases—cases where an em­
ployee who cannot take tangible employment actions, but
who does direct the victim’s daily work activities in a
meaningful way, creates an unlawful hostile environment,
and yet does not wield authority of such a degree and
nature that the employer can be deemed negligent with
respect to the harassment. We are skeptical that there
are a great number of such cases. However, we are confi­
dent that, in every case, the approach we take today will
be more easily administrable than the approach advocated
by the dissent.
30 VANCE v. BALL STATE UNIV.
Opinion of the Court
* * *
We hold that an employee is a “supervisor” for purposes
of vicarious liability under Title VII if he or she is empow­
ered by the employer to take tangible employment actions
against the victim. Because there is no evidence that BSU
empowered Davis to take any tangible employment ac­
tions against Vance, the judgment of the Seventh Circuit
is affirmed.
It is so ordered.
Cite as: 570 U. S. ____ (2013) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–556
_________________
MAETTA VANCE, PETITIONER v. BALL STATE
UNIVERSITY
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 24, 2013]
JUSTICE THOMAS, concurring.
I continue to believe that Burlington Industries, Inc. v.
Ellerth, 524 U. S. 742 (1998), and Faragher v. Boca Raton,
524 U. S. 775 (1998), were wrongly decided. See ante, at 8.
However, I join the opinion because it provides the nar-
rowest and most workable rule for when an employer may
be held vicariously liable for an employee’s harassment.
Cite as: 570 U. S. ____ (2013) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–556
_________________
MAETTA VANCE, PETITIONER v. BALL STATE
UNIVERSITY
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 24, 2013]
JUSTICE GINSBURG, with whom JUSTICE BREYER,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
In Faragher v. Boca Raton, 524 U. S. 775 (1998), and
Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998),
this Court held that an employer can be vicariously liable
under Title VII of the Civil Rights Act of 1964 for harass-
ment by an employee given supervisory authority over
subordinates. In line with those decisions, in 1999, the
Equal Employment Opportunity Commission (EEOC)
provided enforcement guidance “regarding employer liabil-
ity for harassment by supervisors based on sex, race, color,
religion, national origin, age, disability, or protected activ-
ity.” EEOC, Guidance on Vicarious Employer Liability
For Unlawful Harassment by Supervisors, 8 BNA FEP
Manual 405:7651 (Feb. 2003) (hereinafter EEOC Guid-
ance). Addressing who qualifies as a supervisor, the
EEOC answered: (1) an individual authorized “to under-
take or recommend tangible employment decisions affect-
ing the employee,” including “hiring, firing, promoting,
demoting, and reassigning the employee”; or (2) an indi-
vidual authorized “to direct the employee’s daily work
activities.” Id., at 405:7654.
The Court today strikes from the supervisory category
employees who control the day-to-day schedules and as-
signments of others, confining the category to those for-
2 VANCE v. BALL STATE UNIV.
GINSBURG, J., dissenting
mally empowered to take tangible employment actions.
The limitation the Court decrees diminishes the force of
Faragher and Ellerth, ignores the conditions under which
members of the work force labor, and disserves the objec-
tive of Title VII to prevent discrimination from infecting
the Nation’s workplaces. I would follow the EEOC’s Guid-
ance and hold that the authority to direct an employee’s
daily activities establishes supervisory status under Title
VII.
I
A
Title VII makes it “an unlawful employment practice for
an employer” to “discriminate against any individual with
respect to” the “terms, conditions, or privileges of employ-
ment, because of such individual’s race, color, religion, sex,
or national origin.” 42 U. S. C. §2000e–2(a). The creation
of a hostile work environment through harassment, this
Court has long recognized, is a form of proscribed discrim-
ination. Oncale v. Sundowner Offshore Services, Inc., 523
U. S. 75, 78 (1998); Meritor Savings Bank, FSB v. Vinson,
477 U. S. 57, 64–65 (1986).
What qualifies as harassment? Title VII imposes no
“general civility code.” Oncale, 523 U. S., at 81. It does
not reach “the ordinary tribulations of the workplace,” for
example, “sporadic use of abusive language” or generally
boorish conduct. B. Lindemann & D. Kadue, Sexual Har-
assment in Employment Law 175 (1992). See also 1 B.
Lindemann & P. Grossman, Employment Discrimination
Law 1335–1343 (4th ed. 2007) (hereinafter Lindemann &
Grossman). To be actionable, charged behavior need not
drive the victim from her job, but it must be of such sever-
ity or pervasiveness as to pollute the working environment,
thereby “alter[ing] the conditions of the victim’s employ-
ment.” Harris v. Forklift Systems, Inc., 510 U. S. 17, 21–
22 (1993).
Cite as: 570 U. S. ____ (2013) 3
GINSBURG, J., dissenting
In Faragher and Ellerth, this Court established a
framework for determining when an employer may be held
liable for its employees’ creation of a hostile work envi-
ronment. Recognizing that Title VII’s definition of “em-
ployer” includes an employer’s “agent[s],” 42 U. S. C.
§2000e(b), the Court looked to agency law for guidance in
formulating liability standards. Faragher, 524 U. S., at
791, 801; Ellerth, 524 U. S., at 755–760. In particular, the
Court drew upon §219(2)(d) of the Restatement (Second) of
Agency (1957), which makes an employer liable for the
conduct of an employee, even when that employee acts
beyond the scope of her employment, if the employee is
“aided in accomplishing” a tort “by the existence of the
agency relation.” See Faragher, 524 U. S., at 801; Ellerth,
524 U. S., at 758.
Stemming from that guide, Faragher and Ellerth distin-
guished between harassment perpetrated by supervisors,
which is often enabled by the supervisor’s agency relation-
ship with the employer, and harassment perpetrated by
co-workers, which is not similarly facilitated. Faragher,
524 U. S., at 801–803; Ellerth, 524 U. S., at 763–765. If
the harassing employee is a supervisor, the Court held,
the employer is vicariously liable whenever the harass-
ment culminates in a tangible employment action. Far-
agher, 524 U. S., at 807–808; Ellerth, 524 U. S., at 764–
765. The term “tangible employment action,” Ellerth
observed, “constitutes a significant change in employment
status, such as hiring, firing, failing to promote, reassign-
ment with significantly different responsibilities, or a
decision causing a significant change in benefits.” Id., at
761. Such an action, the Court explained, provides “as-
surance the injury could not have been inflicted absent the
agency relation.” Id., at 761–762.
An employer may also be held vicariously liable for a
supervisor’s harassment that does not culminate in a
tangible employment action, the Court next determined.
4 VANCE v. BALL STATE UNIV.
GINSBURG, J., dissenting
In such a case, however, the employer may avoid liability
by showing that (1) it exercised reasonable care to pre-
vent and promptly correct harassing behavior, and (2)
the complainant unreasonably failed to take advantage of
preventative or corrective measures made available to her.
Faragher, 524 U. S., at 807; Ellerth, 524 U. S., at 765. The
employer bears the burden of establishing this affirmative
defense by a preponderance of the evidence. Faragher,
524 U. S., at 807; Ellerth, 524 U. S., at 765.
In contrast, if the harassing employee is a co-worker, a
negligence standard applies. To satisfy that standard, the
complainant must show that the employer knew or should
have known of the offensive conduct but failed to take
appropriate corrective action. See Faragher, 524 U. S., at
799; Ellerth, 524 U. S., at 758–759. See also 29 CFR
§1604.11(d) (2012); EEOC Guidance 405:7652.
B
The distinction Faragher and Ellerth drew between
supervisors and co-workers corresponds to the realities of
the workplace. Exposed to a fellow employee’s harass-
ment, one can walk away or tell the offender to “buzz off.”
A supervisor’s slings and arrows, however, are not so
easily avoided. An employee who confronts her harassing
supervisor risks, for example, receiving an undesirable or
unsafe work assignment or an unwanted transfer. She
may be saddled with an excessive workload or with place-
ment on a shift spanning hours disruptive of her family
life. And she may be demoted or fired. Facing such
dangers, she may be reluctant to blow the whistle on her
superior, whose “power and authority invests his or her
harassing conduct with a particular threatening charac-
ter.” Ellerth, 524 U. S., at 763. See also Faragher, 524
U. S., at 803; Brief for Respondent 23 (“The potential
threat to one’s livelihood or working conditions will make
the victim think twice before resisting harassment or
Cite as: 570 U. S. ____ (2013) 5
GINSBURG, J., dissenting
fighting back.”). In short, as Faragher and Ellerth recog-
nized, harassment by supervisors is more likely to cause
palpable harm and to persist unabated than similar con-
duct by fellow employees.
II
While Faragher and Ellerth differentiated harassment
by supervisors from harassment by co-workers, neither
decision gave a definitive answer to the question: Who
qualifies as a supervisor? Two views have emerged. One
view, in line with the EEOC’s Guidance, counts as a
supervisor anyone with authority to take tangible employ-
ment actions or to direct an employee’s daily work activi-
ties. E.g., Mack v. Otis Elevator Co., 326 F. 3d 116, 127
(CA2 2003); Whitten v. Fred’s, Inc., 601 F. 3d 231, 246
(CA4 2010); EEOC Guidance 405:7654. The other view
ranks as supervisors only those authorized to take tangi-
ble employment actions. E.g., Noviello v. Boston, 398
F. 3d 76, 96 (CA1 2005); Parkins v. Civil Constructors of
Ill., Inc., 163 F. 3d 1027, 1034 (CA7 1998); Joens v. John
Morrell & Co., 354 F. 3d 938, 940–941 (CA8 2004).
Notably, respondent Ball State University agreed with
petitioner Vance and the United States, as amicus curiae,
that the tangible-employment-action-only test “does not
necessarily capture all employees who may qualify as
supervisors.” Brief for Respondent 1. “[V]icarious liabil-
ity,” Ball State acknowledged, “also may be triggered
when the harassing employee has the authority to control
the victim’s daily work activities in a way that materially
enables the harassment.” Id., at 1–2.
The different view taken by the Court today is out of
accord with the agency principles that, Faragher and
Ellerth affirmed, govern Title VII. See supra, at 3–4. It is
blind to the realities of the workplace, and it discounts the
guidance of the EEOC, the agency Congress established to
interpret, and superintend the enforcement of, Title VII.
6 VANCE v. BALL STATE UNIV.
GINSBURG, J., dissenting
Under that guidance, the appropriate question is: Has
the employer given the alleged harasser authority to take
tangible employment actions or to control the conditions
under which subordinates do their daily work? If the
answer to either inquiry is yes, vicarious liability is in
order, for the superior-subordinate working arrangement
facilitating the harassment is of the employer’s making.
A
Until today, our decisions have assumed that employees
who direct subordinates’ daily work are supervisors. In
Faragher, the city of Boca Raton, Florida, employed Bill
Terry and David Silverman to oversee the city’s corps of
ocean lifeguards. 524 U. S., at 780. Terry and Silverman
“repeatedly subject[ed] Faragher and other female life-
guards to uninvited and offensive touching,” and they
regularly “ma[de] lewd remarks, and [spoke] of women in
offensive terms.” Ibid. (internal quotation marks omitted).
Terry told a job applicant that “female lifeguards had sex
with their male counterparts,” and then “asked whether
she would do the same.” Id., at 782. Silverman threat-
ened to assign Faragher to toilet-cleaning duties for a year
if she refused to date him. Id., at 780. In words and
conduct, Silverman and Terry made the beach a hostile
place for women to work.
As Chief of Boca Raton’s Marine Safety Division, Terry
had authority to “hire new lifeguards (subject to the ap-
proval of higher management), to supervise all aspects of
the lifeguards’ work assignments, to engage in counseling,
to deliver oral reprimands, and to make a record of any
such discipline.” Id., at 781. Silverman’s duties as a
Marine Safety lieutenant included “making the lifeguards’
daily assignments, and . . . supervising their work and
fitness training.” Ibid. Both men “were granted virtually
unchecked authority over their subordinates, directly
controlling and supervising all aspects of Faragher’s day-
Cite as: 570 U. S. ____ (2013) 7
GINSBURG, J., dissenting
to-day activities.” Id., at 808 (internal quotation marks
and brackets omitted).
We may assume that Terry would fall within the defini-
tion of supervisor the Court adopts today. See ante, at 9.1
But nothing in the Faragher record shows that Silver-
man would. Silverman had oversight and assignment
responsibilities—he could punish lifeguards who would not
date him with full-time toilet-cleaning duty—but there
was no evidence that he had authority to take tangible
employment actions. See Faragher, 524 U. S., at 780–781.
Holding that Boca Raton was vicariously liable for Silver-
man’s harassment, id., at 808–809, the Court characterized
him as Faragher’s supervisor, see id., at 780, and there
was no dissent on that point, see id., at 810 (THOMAS, J.,
dissenting).
Subsequent decisions reinforced Faragher’s use of the
term “supervisor” to encompass employees with authority
to direct the daily work of their victims. In Pennsylvania
State Police v. Suders, 542 U. S. 129, 140 (2004), for ex-
ample, the Court considered whether a constructive dis-
charge occasioned by supervisor harassment ranks as a
tangible employment action. The harassing employees
lacked authority to discharge or demote the complainant,
——————
1 It is not altogether evident that Terry would qualify under the
Court’s test. His authority to hire was subject to approval by higher
management, Faragher v. Boca Raton, 524 U. S. 775, 781 (1998), and
there is scant indication that he possessed other powers on the Court’s
list. The Court observes that Terry was able to “recommen[d],” and
“initiat[e]” tangible employment actions. Ante, at 15, n. 8 (internal
quotation marks omitted). Nothing in the Faragher record, however,
shows that Terry had authority to take such actions himself. Far-
agher’s complaint alleged that Terry said he would never promote a
female lifeguard to the rank of lieutenant, 524 U. S., at 780, but that
statement hardly suffices to establish that he had ultimate promotional
authority. Had Boca Raton anticipated the position the Court today
announces, the city might have urged classification of Terry as Far-
agher’s superior, but not her “supervisor.”
8 VANCE v. BALL STATE UNIV.
GINSBURG, J., dissenting
but they were “responsible for the day-to-day supervi-
sion” of the workplace and for overseeing employee shifts.
Suders v. Easton, 325 F. 3d 432, 450, n. 11 (CA3 2003).
Describing the harassing employees as the complainant’s
“supervisors,” the Court proceeded to evaluate the com-
plainant’s constructive discharge claim under the Ellerth
and Faragher framework. Suders, 542 U. S., at 134, 140–
141.
It is true, as the Court says, ante, at 15–17, and n. 11,
that Faragher and later cases did not squarely resolve
whether an employee without power to take tangible em-
ployment actions may nonetheless qualify as a supervisor.
But in laboring to establish that Silverman’s supervi-
sor status, undisputed in Faragher, is not dispositive here,
the Court misses the forest for the trees. Faragher illus-
trates an all-too-plain reality: A supervisor with authority
to control subordinates’ daily work is no less aided in his
harassment than is a supervisor with authority to fire,
demote, or transfer. That Silverman could threaten Far-
agher with toilet-cleaning duties while Terry could orally
reprimand her was inconsequential in Faragher, and
properly so. What mattered was that both men took ad-
vantage of the power vested in them as agents of Boca
Raton to facilitate their abuse. See Faragher, 524 U. S., at
801 (Silverman and Terry “implicitly threaten[ed] to mis-
use their supervisory powers to deter any resistance or
complaint.”). And when, assisted by an agency relation-
ship, in-charge superiors like Silverman perpetuate a
discriminatory work environment, our decisions have
appropriately held the employer vicariously liable, subject
to the above-described affirmative defense. See supra, at
3–4.
B
Workplace realities fortify my conclusion that harass-
ment by an employee with power to direct subordinates’
Cite as: 570 U. S. ____ (2013) 9
GINSBURG, J., dissenting
day-to-day work activities should trigger vicarious em-
ployer liability. The following illustrations, none of them
hypothetical, involve in-charge employees of the kind the
Court today excludes from supervisory status.2
Yasharay Mack: Yasharay Mack, an African-American
woman, worked for the Otis Elevator Company as an
elevator mechanic’s helper at the Metropolitan Life Build-
ing in New York City. James Connolly, the “mechanic in
charge” and the senior employee at the site, targeted Mack
for abuse. He commented frequently on her “fantastic
ass,” “luscious lips,” and “beautiful eyes,” and, using de-
plorable racial epithets, opined that minorities and women
did not “belong in the business.” Once, he pulled her on
his lap, touched her buttocks, and tried to kiss her while
others looked on. Connolly lacked authority to take tangi-
ble employment actions against mechanic’s helpers, but he
did assign their work, control their schedules, and direct
the particulars of their workdays. When he became angry
with Mack, for example, he denied her overtime hours.
And when she complained about the mistreatment, he
scoffed, “I get away with everything.” See Mack, 326
F. 3d, at 120–121, 125–126 (internal quotation marks
omitted).
Donna Rhodes: Donna Rhodes, a seasonal highway
maintainer for the Illinois Department of Transportation,
was responsible for plowing snow during winter months.
Michael Poladian was a “Lead Lead Worker” and Matt
Mara, a “Technician” at the maintenance yard where
Rhodes worked. Both men assembled plow crews and
managed the work assignments of employees in Rhodes’s
position, but neither had authority to hire, fire, promote,
——————
2 The illustrative cases reached the appellate level after grants of
summary judgment in favor of the employer. Like the Courts of Ap-
peals in each case, I recount the facts in the light most favorable to the
employee, the nonmoving party.
10 VANCE v. BALL STATE UNIV.
GINSBURG, J., dissenting
demote, transfer, or discipline employees. In her third
season working at the yard, Rhodes was verbally assaulted
with sex-based invectives and a pornographic image was
taped to her locker. Poladian forced her to wash her
truck in sub-zero temperatures, assigned her undesirable
yard work instead of road crew work, and prohibited
another employee from fixing the malfunctioning heating
system in her truck. Conceding that Rhodes had been
subjected to a sex-based hostile work environment, the
Department of Transportation argued successfully in the
District Court and Court of Appeals that Poladian and
Mara were not Rhodes’s supervisors because they lacked
authority to take tangible employment actions against
her. See Rhodes v. Illinois Dept. of Transp., 359 F. 3d 498,
501–503, 506–507 (CA7 2004).
Clara Whitten: Clara Whitten worked at a discount
retail store in Belton, South Carolina. On Whitten’s first
day of work, the manager, Matt Green, told her to “give
[him] what [he] want[ed]” in order to obtain approval for
long weekends off from work. Later, fearing what might
transpire, Whitten ignored Green’s order to join him in an
isolated storeroom. Angered, Green instructed Whitten to
stay late and clean the store. He demanded that she work
over the weekend despite her scheduled day off. Dismiss-
ing her as “dumb and stupid,” Green threatened to make
her life a “living hell.” Green lacked authority to fire,
promote, demote, or otherwise make decisions affecting
Whitten’s pocketbook. But he directed her activities, gave
her tasks to accomplish, burdened her with undesirable
work assignments, and controlled her schedule. He was
usually the highest ranking employee in the store, and
both Whitten and Green considered him the supervisor.
See Whitten, 601 F. 3d, at 236, 244–247 (internal quota-
tion marks omitted).
Monika Starke: CRST Van Expedited, Inc., an interstate
transit company, ran a training program for newly hired
Cite as: 570 U. S. ____ (2013) 11
GINSBURG, J., dissenting
truckdrivers requiring a 28-day on-the-road trip. Monika
Starke participated in the program. Trainees like Starke
were paired in a truck cabin with a single “lead driver”
who lacked authority to hire, fire, promote, or demote, but
who exercised control over the work environment for the
duration of the trip. Lead drivers were responsible for
providing instruction on CRST’s driving method, assigning
specific tasks, and scheduling rest stops. At the end of the
trip, lead drivers evaluated trainees’ performance with a
nonbinding pass or fail recommendation that could lead to
full driver status. Over the course of Starke’s training
trip, her first lead driver, Bob Smith, filled the cabin with
vulgar sexual remarks, commenting on her breast size and
comparing the gear stick to genitalia. A second lead driver,
David Goodman, later forced her into unwanted sex with
him, an outrage to which she submitted, believing it
necessary to gain a passing grade. See EEOC v. CRST
Van Expedited, Inc., 679 F. 3d 657, 665–666, 684–685
(CA8 2012).
In each of these cases, a person vested with authority to
control the conditions of a subordinate’s daily work life
used his position to aid his harassment. But in none of
them would the Court’s severely confined definition of su-
pervisor yield vicarious liability for the employer. The
senior elevator mechanic in charge, the Court today tells
us, was Mack’s co-worker, not her supervisor. So was the
store manager who punished Whitten with long hours for
refusing to give him what he wanted. So were the lead
drivers who controlled all aspects of Starke’s working
environment, and the yard worker who kept other employ-
ees from helping Rhodes to control the heat in her truck.
As anyone with work experience would immediately
grasp, James Connolly, Michael Poladian, Matt Mara,
Matt Green, Bob Smith, and David Goodman wielded
employer-conferred supervisory authority over their vic-
tims. Each man’s discriminatory harassment derived
12 VANCE v. BALL STATE UNIV.
GINSBURG, J., dissenting
force from, and was facilitated by, the control reins he
held. Cf. Burlington N. & S. F. R. Co. v. White, 548 U. S.
53, 70–71 (2006) (“Common sense suggests that one good
way to discourage an employee . . . from bringing discrim-
ination charges would be to insist that she spend more
time performing the more arduous duties and less time
performing those that are easier or more agreeable.”).
Under any fair reading of Title VII, in each of the illustra-
tive cases, the superior employee should have been classi-
fied a supervisor whose conduct would trigger vicarious
liability.3
C
Within a year after the Court’s decisions in Faragher
and Ellerth, the EEOC defined “supervisor” to include any
employee with “authority to undertake or recommend
tangible employment decisions,” or with “authority to di-
rect [another] employee’s daily work activities.” EEOC
Guidance 405:7654. That definition should garner “re-
spect proportional to its ‘power to persuade.’ ” United
States v. Mead Corp., 533 U. S. 218, 235 (2001) (quoting
Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944)). See
also Crawford v. Metropolitan Government of Nashville
——————
3 The Court misses the point of the illustrations. See ante, at 26–28,
and nn. 15–16. Even under a vicarious liability rule, the Court points
out, employers might escape liability for reasons other than the har-
asser’s status as supervisor. For example, Rhodes might have avoided
summary judgment in favor of her employer; even so, it would have
been open to the employer to raise and prove to a jury the Faragher/
Ellerth affirmative defense, see supra, at 3–4. No doubt other bar-
riers also might impede an employee from prevailing, for example,
Whitten’s and Starke’s intervening bankruptcies, see Whitten v. Fred’s
Inc., No. 8:08–0218–HMH–BHH, 2010 WL 2757005 (D. SC, July 12,
2010); EEOC v. CRST Van Expedited, Inc., 679 F. 3d 657, 678, and
n. 14 (CA8 2012), or Mack’s withdrawal of her complaint for reasons not
apparent from the record, see ante, at 27–28, n. 16. That, however, is
no reason to restrict the definition of supervisor in a way that leaves
out those genuinely in charge.
Cite as: 570 U. S. ____ (2013) 13
GINSBURG, J., dissenting
and Davidson Cty., 555 U. S. 271, 276 (2009) (EEOC
guidelines merited Skidmore deference); Federal Express
Corp. v. Holowecki, 552 U. S. 389, 399–403 (2008) (same);
Meritor, 477 U. S., at 65 (same).4
The EEOC’s definition of supervisor reflects the agency’s
“informed judgment” and “body of experience” in enforcing
Title VII. Id., at 65 (internal quotation marks omitted).
For 14 years, in enforcement actions and litigation,
the EEOC has firmly adhered to its definition. See Brief
for United States as Amicus Curiae 28 (citing numerous
briefs in the Courts of Appeals setting forth the EEOC’s
understanding).
In developing its definition of supervisor, the EEOC
paid close attention to the Faragher and Ellerth frame-
work. An employer is vicariously liable only when the
authority it has delegated enables actionable harassment,
the EEOC recognized. EEOC Guidance 405:7654. For
that reason, a supervisor’s authority must be “of a suffi-
cient magnitude so as to assist the harasser . . . in carry-
ing out the harassment.” Ibid. Determining whether an
employee wields sufficient authority is not a mechanical
inquiry, the EEOC explained; instead, specific facts about
the employee’s job function are critical. Id., at 405:7653 to
405:7654. Thus, an employee with authority to increase
another’s workload or assign undesirable tasks may rank
as a supervisor, for those powers can enable harassment.
Id., at 405:7654. On the other hand, an employee “who
directs only a limited number of tasks or assignments”
——————
4 Respondent’s amici maintain that the EEOC Guidance is ineligible
for deference under Skidmore v. Swift & Co., 323 U. S. 134 (1944),
because it interprets Faragher and Burlington Industries, Inc. v.
Ellerth, 524 U. S. 742 (1998), not the text of Title VII. See Brief for
Society for Human Resource Management et al. 11–16. They are
mistaken. The EEOC Guidance rests on the employer liability frame-
work set forth in Faragher and Ellerth, but both the framework and
EEOC Guidance construe the term “agent” in 42 U. S. C. §2000e(b).
14 VANCE v. BALL STATE UNIV.
GINSBURG, J., dissenting
ordinarily would not qualify as a supervisor, for her har-
assing conduct is not likely to be aided materially by the
agency relationship. Id., at 405:7655.
In my view, the EEOC’s definition, which the Court puts
down as “a study in ambiguity,” ante, at 21, has the ring of
truth and, therefore, powerfully persuasive force. As a
precondition to vicarious employer liability, the EEOC
explained, the harassing supervisor must wield authority
of sufficient magnitude to enable the harassment. In
other words, the aided-in-accomplishment standard re-
quires “something more than the employment relation
itself.” Ellerth, 524 U. S., at 760. Furthermore, as the
EEOC perceived, in assessing an employee’s qualification
as a supervisor, context is often key. See infra, at 16–17.
I would accord the agency’s judgment due respect.
III
Exhibiting remarkable resistance to the thrust of our
prior decisions, workplace realities, and the EEOC’s Guid-
ance, the Court embraces a position that relieves scores of
employers of responsibility for the behavior of the supervi-
sors they employ. Trumpeting the virtues of simplicity
and administrability, the Court restricts supervisor status
to those with power to take tangible employment actions.
In so restricting the definition of supervisor, the Court
once again shuts from sight the “robust protection against
workplace discrimination Congress intended Title VII to
secure.” Ledbetter v. Goodyear Tire & Rubber Co., 550
U. S. 618, 660 (2007) (GINSBURG, J., dissenting).
A
The Court purports to rely on the Ellerth and Faragher
framework to limit supervisor status to those capable of
taking tangible employment actions. Ante, at 10, 18. That
framework, we are told, presupposes “a sharp line between
co-workers and supervisors.” Ante, at 18. The definition
Cite as: 570 U. S. ____ (2013) 15
GINSBURG, J., dissenting
of supervisor decreed today, the Court insists, is “clear,”
“readily applied,” and “easily workable,” ante, at 10, 20,
when compared to the EEOC’s vague standard, ante, at
22.
There is reason to doubt just how “clear” and “workable”
the Court’s definition is. A supervisor, the Court holds, is
someone empowered to “take tangible employment actions
against the victim, i.e., to effect a ‘significant change
in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsi-
bilities, or a decision causing a significant change in bene-
fits.’ ” Ante, at 9 (quoting Ellerth, 524 U. S., at 761).
Whether reassignment authority makes someone a super-
visor might depend on whether the reassignment carries
economic consequences. Ante, at 16, n. 9. The power to
discipline other employees, when the discipline has eco-
nomic consequences, might count, too. Ibid. So might the
power to initiate or make recommendations about tangible
employment actions. Ante, at 15, n. 8. And when an
employer “concentrates all decisionmaking authority in a
few individuals” who rely on information from “other
workers who actually interact with the affected employee,”
the other workers may rank as supervisors (or maybe not;
the Court does not commit one way or the other). Ante,
at 26.
Someone in search of a bright line might well ask, what
counts as “significantly different responsibilities”? Can
any economic consequence make a reassignment or
disciplinary action “significant,” or is there a minimum
threshold? How concentrated must the decisionmaking
authority be to deem those not formally endowed with that
authority nevertheless “supervisors”? The Court leaves
these questions unanswered, and its liberal use of
“mights” and “mays,” ante, at 15, n. 8, 16, n. 9, 26, dims
16 VANCE v. BALL STATE UNIV.
GINSBURG, J., dissenting
the light it casts.5
That the Court has adopted a standard, rather than a
clear rule, is not surprising, for no crisp definition of su-
pervisor could supply the unwavering line the Court de-
sires. Supervisors, like the workplaces they manage, come
in all shapes and sizes. Whether a pitching coach super-
vises his pitchers (can he demote them?), or an artistic
director supervises her opera star (can she impose signifi-
cantly different responsibilities?), or a law firm associate
supervises the firm’s paralegals (can she fire them?) are
matters not susceptible to mechanical rules and on-off
switches. One cannot know whether an employer has
vested supervisory authority in an employee, and whether
harassment is aided by that authority, without looking to
the particular working relationship between the harasser
and the victim. That is why Faragher and Ellerth crafted
an employer liability standard embracive of all whose
authority significantly aids in the creation and perpetua-
tion of harassment.
The Court’s focus on finding a definition of supervisor
capable of instant application is at odds with the Court’s
ordinary emphasis on the importance of particular circum-
stances in Title VII cases. See, e.g., Burlington Northern,
548 U. S., at 69 (“[T]he significance of any given act of
retaliation will often depend upon the particular circum-
stances.”); Harris, 510 U. S., at 23 (“[W]hether an envi-
ronment is ‘hostile’ or ‘abusive’ can be determined only by
——————
5 Even the Seventh Circuit, whose definition of supervisor the Court
adopts in large measure, has candidly acknowledged that, under its
definition, supervisor status is not a clear and certain thing. See Doe v.
Oberweis Dairy, 456 F. 3d 704, 717 (2006) (“The difficulty of classifica-
tion in this case arises from the fact that Nayman, the shift supervisor,
was in between the paradigmatic classes [of supervisor and co-worker].
He had supervisory responsibility in the sense of authority to direct the
work of the [ice-cream] scoopers, and he was even authorized to issue
disciplinary write-ups, but he had no authority to fire them. He was
either an elevated coworker or a diminished supervisor.”).
Cite as: 570 U. S. ____ (2013) 17
GINSBURG, J., dissenting
looking at all the circumstances.”).6 The question of
supervisory status, no less than the question whether retali-
ation or harassment has occurred, “depends on a constella-
tion of surrounding circumstances, expectations, and
relationships.” Oncale, 523 U. S., at 81–82. The EEOC’s
Guidance so perceives.
B
As a consequence of the Court’s truncated conception of
supervisory authority, the Faragher and Ellerth frame-
work has shifted in a decidedly employer-friendly direc-
tion. This realignment will leave many harassment
victims without an effective remedy and undermine Title
VII’s capacity to prevent workplace harassment.
The negligence standard allowed by the Court, see ante,
at 24, scarcely affords the protection the Faragher and
Ellerth framework gave victims harassed by those in
control of their lives at work. Recall that an employer is
negligent with regard to harassment only if it knew or
should have known of the conduct but failed to take ap-
propriate corrective action. See 29 CFR §1604.11(d);
EEOC Guidance 405:7652 to 405:7653. It is not uncom-
mon for employers to lack actual or constructive notice of a
harassing employee’s conduct. See Lindemann & Gross-
man 1378–1379. An employee may have a reputation as a
harasser among those in his vicinity, but if no complaint
makes its way up to management, the employer will es-
cape liability under a negligence standard. Id., at 1378.
——————
6 The Court worries that the EEOC’s definition of supervisor will
confound jurors who must first determine whether the harasser is a
supervisor and second apply the correct employer liability standard.
Ante, at 22–24, and nn. 13, 14. But the Court can point to no evidence
that jury instructions on supervisor status in jurisdictions following the
EEOC Guidance have in fact proved unworkable or confusing to jurors.
Moreover, under the Court’s definition of supervisor, jurors in many
cases will be obliged to determine, as a threshold question, whether the
alleged harasser possessed supervisory authority. See supra, at 15–16.
18 VANCE v. BALL STATE UNIV.
GINSBURG, J., dissenting
Faragher is illustrative. After enduring unrelenting
harassment, Faragher reported Terry’s and Silverman’s
conduct informally to Robert Gordon, another immediate
supervisor. 524 U. S., at 782–783. But the lifeguards
were “completely isolated from the City’s higher manage-
ment,” and it did not occur to Faragher to pursue the
matter with higher ranking city officials distant from the
beach. Id., at 783, 808 (internal quotation marks omitted).
Applying a negligence standard, the Eleventh Circuit held
that, despite the pervasiveness of the harassment, and
despite Gordon’s awareness of it, Boca Raton lacked con-
structive notice and therefore escaped liability. Id., at
784–785. Under the vicarious liability standard, however,
Boca Raton could not make out the affirmative defense, for
it had failed to disseminate a policy against sexual har-
assment. Id., at 808–809.
On top of the substantive differences in the negligence
and vicarious liability standards, harassment victims,
under today’s decision, are saddled with the burden of
proving the employer’s negligence whenever the harasser
lacks the power to take tangible employment actions.
Faragher and Ellerth, by contrast, placed the burden
squarely on the employer to make out the affirmative
defense. See Suders, 542 U. S., at 146 (citing Ellerth, 524
U. S., at 765; Faragher, 524 U. S., at 807). This allocation
of the burden was both sensible and deliberate: An em-
ployer has superior access to evidence bearing on whether
it acted reasonably to prevent or correct harassing behav-
ior, and superior resources to marshal that evidence. See
542 U. S., at 146, n. 7 (“The employer is in the best posi-
tion to know what remedial procedures it offers to employ-
ees and how those procedures operate.”).
Faced with a steeper substantive and procedural hill to
climb, victims like Yasharay Mack, Donna Rhodes, Clara
Whitten, and Monika Starke likely will find it impossible
to obtain redress. We can expect that, as a consequence of
Cite as: 570 U. S. ____ (2013) 19
GINSBURG, J., dissenting
restricting the supervisor category to those formally em-
powered to take tangible employment actions, victims of
workplace harassment with meritorious Title VII claims
will find suit a hazardous endeavor.7
Inevitably, the Court’s definition of supervisor will
hinder efforts to stamp out discrimination in the work-
place. Because supervisors are comparatively few, and
employees are many, “the employer has a greater oppor-
tunity to guard against misconduct by supervisors than by
common workers,” and a greater incentive to “screen
[supervisors], train them, and monitor their performance.”
Faragher, 524 U. S., at 803. Vicarious liability for em-
ployers serves this end. When employers know they will
be answerable for the injuries a harassing jobsite boss
inflicts, their incentive to provide preventative instruction
is heightened. If vicarious liability is confined to supervi-
sors formally empowered to take tangible employment
actions, however, employers will have a diminished incen-
tive to train those who control their subordinates’ work
activities and schedules, i.e., the supervisors who “actually
interact” with employees. Ante, at 26.
IV
I turn now to the case before us. Maetta Vance worked
as substitute server and part-time catering assistant for
Ball State University’s Banquet and Catering Division.
During the period in question, she alleged, Saundra Davis,
a catering specialist, and other Ball State employees
subjected her to a racially hostile work environment.
Applying controlling Circuit precedent, the District Court
and Seventh Circuit concluded that Davis was not Vance’s
——————
7 Nor is the Court’s confinement of supervisor status needed to deter
insubstantial claims. Under the EEOC Guidance, a plaintiff must meet
the threshold requirement of actionable harassment and then show
that her supervisor’s authority was of “sufficient magnitude” to assist
in the harassment. See EEOC Guidance 405:7652, 405:7654.
20 VANCE v. BALL STATE UNIV.
GINSBURG, J., dissenting
supervisor, and reviewed Ball State’s liability for her
conduct under a negligence standard. 646 F. 3d 461, 470–
471 (2011); App. to Pet. for Cert. 53a–55a, 59a–60a. Because
I would hold that the Seventh Circuit erred in restrict-
ing supervisor status to employees formally empowered
to take tangible employment actions, I would remand
for application of the proper standard to Vance’s claim.
On this record, however, there is cause to anticipate that
Davis would not qualify as Vance’s supervisor.8
Supervisor status is based on “job function rather than
job title,” and depends on “specific facts” about the work-
ing relationship. EEOC Guidance 405:7654. See supra, at
13. Vance has adduced scant evidence that Davis con-
trolled the conditions of her daily work. Vance stated in
an affidavit that the general manager of the Catering
Division, Bill Kimes, was charged with “overall supervi-
sion in the kitchen,” including “reassign[ing] people to
perform different tasks,” and “control[ling] the schedule.”
App. 431. The chef, Shannon Fultz, assigned tasks by
preparing “prep lists” of daily duties. Id., at 277–279, 427.
There is no allegation that Davis had a hand in creating
these prep lists, nor is there any indication that, in fact,
Davis otherwise controlled the particulars of Vance’s
workday. Vance herself testified that she did not know
whether Davis was her supervisor. Id., at 198.
True, Davis’ job description listed among her responsi-
bilities “[l]ead[ing] and direct[ing] kitchen part-time,
substitute, and student employee helpers via demonstra-
——————
8 In addition to concluding that Davis was not Vance’s supervisor, the
District Court held that the conduct Vance alleged was “neither suffi-
ciently severe nor pervasive to be considered objectively hostile for the
purposes of Title VII.” App. to Pet. for Cert. 66a. The Seventh Circuit
declined to address this issue. See 646 F. 3d 461, 471 (2011). If the
case were remanded, the Court of Appeals could resolve the hostile
environment issue first, and then, if necessary, Davis’ status as super-
visor or co-worker.
Cite as: 570 U. S. ____ (2013) 21
GINSBURG, J., dissenting
tion, coaching, and overseeing their work.” Id., at 13. And
another employee testified to believing that Davis was “a
supervisor.” Id., at 386. But because the supervisor-
status inquiry should focus on substance, not labels or
paper descriptions, it is doubtful that this slim evidence
would enable Vance to survive a motion for summary
judgment. Nevertheless, I would leave it to the Seventh
Circuit to decide, under the proper standard for super-
visory status, what impact, if any, Davis’ job description
and the co-worker’s statement should have on the deter-
mination of Davis’ status.9
V
Regrettably, the Court has seized upon Vance’s thin
case to narrow the definition of supervisor, and thereby
manifestly limit Title VII’s protections against workplace
harassment. Not even Ball State, the defendant-employer
in this case, has advanced the restrictive definition the
Court adopts. See supra, at 5. Yet the Court, insistent on
constructing artificial categories where context should be
key, proceeds on an immoderate and unrestrained course
to corral Title VII.
Congress has, in the recent past, intervened to correct
this Court’s wayward interpretations of Title VII. See
Lilly Ledbetter Fair Pay Act of 2009, 123 Stat. 5, super-
seding Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S.
618 (2007). See also Civil Rights Act of 1991, 105 Stat.
1071, superseding in part, Lorance v. AT&T Technologies,
Inc., 490 U. S. 900 (1989); Martin v. Wilks, 490 U. S. 755(1989); Wards Cove Packing Co. v. Atonio, 490 U. S. 642——————
9 The Court agrees that Davis “would probably not qualify” as Vance’s
supervisor under the EEOC’s definition. Ante, at 28–29. Then why,
one might ask, does the Court nevertheless reach out to announce its
restrictive standard in this case, one in which all parties, including the
defendant-employer, accept the fitness for Title VII of the EEOC’s
Guidance? See supra, at 5.
22 VANCE v. BALL STATE UNIV.
GINSBURG, J., dissenting
(1989); and Price Waterhouse v. Hopkins, 490 U. S. 228(1989). The ball is once again in Congress’ court to correct
the error into which this Court has fallen, and to restore
the robust protections against workplace harassment the
Court weakens today.
* * *
For the reasons stated, I would reverse the judgment of
the Seventh Circuit and remand the case for application of
the proper standard for determining who qualifies as a
supervisor.