Vance v. Ball State Univ.

(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.