In Vance v. Ball State University, No. 11-556 (June 24, 2013), the United States Supreme Court defined “supervisory” authority under Title VII of the Civil Rights Act of 1962 as requiring the power to make “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.” The Court rejected the Equal Employment Opportunity Commission’s broader definition of supervisor which includes authority to direct other employees as a basis for finding supervisor status. Plaintiff Vance argued that her co-worker, who allegedly slapped, threatened and used racial epithets towards her, had authority to “direct her work” and thus was a supervisor for whose actions her employer could be held vicariously liable. The Court disagreed, and held that an employee can be a “supervisor” for purposes of imposing vicarious liability on an employer under Title VII of the Civil Rights Act of 1964 only if the employee is empowered by the employer to take tangible employment actions against the victim. For more on the Vance v. Ball State decision, click here.

California courts applying California law would likely reach the opposite result. The California Fair Employment and Housing Act adopts a broader definition of supervisor and specifically includes “the responsibility to direct employees” as a basis for finding supervisor status so long as that individual exercises independent judgment. Cal. Govt. Code Section 12926(s), Chapman v. Enos (2004) 116 Cal.App.4th 920, 930. In Vance v. Ball State, the Court viewed the authority to direct daily work activities as “nebulous,” “ill-defined” and overly fact specific whereas it deemed its “tangible employment action” test to be an “easily workable” “brightline” rule that makes determining supervisor status something that can be “readily determined” based on documentation and addressed at the summary judgment stage or earlier.  California employers defending  harassment claims under the FEHA may wish to consider asserting the same logical argument, but should first carefully evaluate the issue with counsel.