Richard Posner's Slate SCOTUS Review: Vance v. Ball State University (#UChiLawSCt)

A disappointing Supreme Court decision on sexual harassment.
Richard A. Posner
June 25, 2013

Vance v. Ball State University, decided by the Supreme Court on Monday, concerns an employer’s liability, under federal civil rights law, for sexual or racial harassment of one employee by another. If the harasser is just a co-worker of the victim, the employer is liable for the harassment only if the employer’s own negligence contributed to it. But if the harasser is a supervisor, the employer may be liable for the harassment even if it has done nothing negligent. Yet what, for these purposes, is a “supervisory” employee?

The majority opinion in Vance, which is by Justice Samuel Alito, answers that to count as the act of a supervisor, harassment has to culminate “in a tangible employment action”—that is, “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.” Earlier decisions had left open the door to a broader employer liability. Vance closes it.

Justice Ruth Bader Ginsburg’s dissenting opinion (joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan) advocates unsuccessfully a broader definition of a “supervisor”: one who “must wield authority of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment.” That is, his authority, conferred by the employer, must increase his ability or propensity to harass another employee.

Richard A. Posner