Elizabeth Lee

Volume 67, Issue 6, 1769-804

Under Title VII of the Civil Rights Act of 1964, an employer can be held liable for harassment or discrimination by a supervisor. In 2013, in Vance v. Ball State University, the Supreme Court narrowed the definition of supervisor, limiting victims’ ability to prevail on vicarious liability claims. In response, Congress proposed the Fair Employment Protection Act (“FEPA”), which sought a return to the broader, pre-Vance definition of supervisor. While Congress has been successful in overriding decisions inconsistent with Title VII’s aims in other contexts, FEPA did not gain enough momentum and eventually failed. As a result, the Vance decision stands, posing an obstacle to many employees whose harassers were not supervisors, but still controlled nearly every aspect of their daily work.

Arguing that neither the pre- nor the post-Vance definition of supervisor fully recognizes workplace realities, this Note proposes a tiered liability structure based on the actual workplace dynamic between harasser and victim. This broader structure reaches harassment by those with the apparent authority to take tangible employment actions. This additional category is important because, if an employee is not aware of a superior’s authority or has reason to believe that her harasser can fire or demote her, it does not matter whether the harasser actually has the authority to do so. However, if employers have exercised reasonable care in preventing or correcting harassment, this structure provides for an affirmative defense against vicarious liability. Further, the structure applies a negligence standard to harassment by coworkers or those who are clearly day-to-day supervisors.

As the workplace continues to take on new forms, this structure would allow employers to minimize liability through clear employee structuring and proper training; victims to seek redress through the category that most aptly reflects their harassers’ authority over them; and courts to more accurately evaluate supervisory status and liability. In effect, this structure can improve efficiency and accuracy throughout the litigation process.

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