A supervisor isn't always a "supervisor" when it comes to sexual harassment

Consider this workplace hypothetical.

Bob manages Department A. He can hire, fire, discipline, and promote employees in Department A.

Jane works in Department B. Bob isn't in Jane's chain of command. He doesn't supervise her, evaluate her, control her pay, recommend discipline, or otherwise have any meaningful say over her employment.

Bob sexually harasses Jane.

Is the company automatically on the hook because Bob is a supervisor? No.

Under Title VII, the question isn't whether Bob supervises someone. It's whether Bob is a supervisor over Jane.

That's an important distinction because the answer determines the standard for employer liability.

In Vance v. Ball State University, the Supreme Court drew a relatively bright line. An employee is a "supervisor" for Title VII harassment purposes only when the employer has empowered that person to take a tangible employment action against the victim — hiring, firing, promoting, demoting, significantly reassigning, or otherwise materially changing the victim's employment status.

So, back to Bob and Jane.

Bob may be a supervisor organizationally. He may have direct reports. He may even have "Vice President" printed on his business card.

But if he has no such authority over Jane, Title VII generally treats him as Jane's coworker, not her supervisor.

The 6th Circuit made this point crystal clear in EEOC v. AutoZone, Inc. There, the alleged harasser was a store manager who could direct employees' work, initiate discipline, make recommendations, and even hire some hourly employees. Yet he could not take tangible employment actions against the employees he actually harassed.

That wasn't enough. As the court put it, the fact that the manager could hire other employees didn't matter. He "could not and did not hire the employees he harassed, and that's what matters under Vance."

A brand-new California case reaches essentially the same conclusion under that state's harassment law.

In Doe v. Wells Fargo Bank, N.A., decided just this week, the alleged harasser was a senior employee whom the plaintiff considered influential. She argued that strict employer liability should apply because he supervised other employees. The court rejected that argument: when someone supervises other people but has no supervisory authority over the plaintiff, "as to the plaintiff, the harasser is a coworker." 

The court was explicit that strict liability did not apply where the alleged harasser wasn't the plaintiff's supervisor and merely supervised other employees.  

This distinction matters because it dramatically changes the liability rules.

If Bob were Jane's supervisor, and his harassment resulted in a tangible employment action against her, the employer would be vicariously liable. If there were no tangible employment action, the employer could avoid liability only through the Faragher/Ellerth affirmative defense.

But because Bob isn't Jane's supervisor, the coworker-harassment negligence standard applies instead. Jane must show that the employer knew or should have known about the harassment and failed to take prompt and appropriate corrective action. Vance expressly preserves that negligence framework for harassers who don't qualify as the victim's supervisors.

There is one important caution.

Org charts aren't everything. An employer can't necessarily avoid supervisor liability by reserving the final signature on hiring, firing, or discipline to somebody higher up. In Kramer v. Wasatch County Sheriff's Office, the 10th Circuit recognized that someone may qualify as a supervisor when the employer has effectively delegated significant employment authority to that person - for example, when evaluations or recommendations actually drive promotion, discipline, reassignment, or termination decisions. 

But mere influence isn't enough. AutoZone rejected the idea that the ability to persuade a decisionmaker automatically transforms someone into the victim's supervisor.

In these cases, the right question isn't, "Is the harasser a manager?" It's, "What authority did the harasser have over this employee?"

Who could hire Jane? Who could fire her? Who controlled her promotions, discipline, pay, significant assignments, and benefits? Whose recommendations were effectively rubber-stamped?

Those facts determine whether Title VII treats the harassment as supervisor harassment, triggering vicarious liability rules, or coworker harassment, governed by a negligence standard.

That doesn't mean employers get a pass when a manager harasses someone outside their reporting line. If the employer knew or should have known about the harassment and failed to respond appropriately, liability can still follow.

But when the issue is vicarious liability, titles alone don't decide the case. Bob's business card may say "manager." The more important question is whether, under Title VII, he was Jane's manager.