Clearer Employer Liability Standards for Title VII Supervisor Harassment and Retaliation Claims

The question addressed in Vance is important to employers because employer liability for harassment under Title VII may depend on whether the harasser is a supervisor. Employers are strictly liable for harassing conduct by supervisors that results in tangible employment action. But an employer can avail itself of certain defenses if the harassment is by a non-supervisory co-worker. Thus, whether the harasser is a supervisor is an important preliminary question in any suit alleging harassment under Title VII. Fortunately for employers, the Supreme Court construed “supervisor” narrowly to include individuals empowered to hire, fire, demote, promote, transfer or discipline other employees. While this clarified standard should assist employers in defending harassment claims, there are still steps employers should take to reduce their risk of liability.

The issue addressed in Nassar is likewise important to employers because the heightened causation standard adopted by the Court will protect them from frivolous retaliation claims. Employees asserting claims of retaliation are now required to prove that “but-for” their protected activity the employer's purported wrongful action would not have occurred. Although Nassar should help employers resolve many claims of retaliation before trial, there are additional steps employers should take to reduce their liability exposure.