Generally speaking, an employer can be held liable for a supervisor's conduct and even another employee's actions toward other employees. However, while an employer is strictly liable for the behavior of a supervisor; the employer is only liable for a non-supervisor's actions if the employer is negligent in their response to prior complaints. In two separate cases decided in 2013, the Supreme Court of the United States and the Court of Appeals for the Tenth Circuit reviewed the definition of what constitutes a "supervisor."
The Supreme Court set forth a test of what constitutes a supervisor in the case entitled Vance v. Ball State University. Ms. Vance was a long-time employee in the catering department of Ball State University ("BSU"). Over the course of her employment she made a number of complaints of racial discrimination and retaliation, pertaining to another BSU catering employee, Ms. Davis. Ms. Vance filed complaints with the EEOC, and subsequently a lawsuit, claiming that she was subjected to a racially hostile work environment in violations of Title VII. Ms. Vance contented that Ms. Davis was her supervisor and that BSU was therefore strictly liable for the creation of the hostile work environment. However, it was undisputed that Ms. Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Ms. Vance. The district court entered summary judgment for BSU finding that Ms. Davis not Ms. Vance's supervisor. The Supreme Court affirmed the decision that Ms. Davis was not a supervisor and BSU was therefore, not strictly liable for her actions. The EEOC argued that a supervisor status is the ability to exercise significant direction over another's daily work. However, the Supreme Court rejected the EEOC's definition, holding that the proper test to determine whether an individual is qualified as a supervisor requires the following finding: an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment action against the victim. Tangible employment action means to effect a significant 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.