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															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 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 “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 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. Id., at 807; Ellerth, supra, at 765.
Under this framework, 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 empowered 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 catering
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 Respondent 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 complaints with BSU and charges with the
Equal Employment Opportunity Commission (EEOC), alleging racial
harassment and discrimination, and many of these complaints 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 attempts 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
complaint, 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 explained that, under its settled
precedent, supervisor status requires “ ‘the power
to hire, fire, demote, promote, transfer, 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 employment, because of such individual’s
race, color, religion, sex, or national origin.” 42
U. S. C. §2000e–2(a)(1). This provision
obviously prohibits discrimination with respect to employment
decisions that have direct economic consequences, 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 perpetuation 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 –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
discrimination as to destroy completely the emotional and psy-
chological stability of minority group workers.” Ibid.
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 harassment 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 generally 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-

															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 servant’s duties, application of this rule
would generally preclude 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 existence 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 situations involve harassment by a “supervisor”
as opposed to a co-worker. First, the Court held that an employer
is vicariously liable “when a supervisor takes a tangible
employment 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 significantly different responsibilities, or a decision
causing 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 decision,
there is assurance the injury could not have been inflicted absent
the agency relation. . . . A tangible employment 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 employer 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 defense. [ 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 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 harassment 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
harassing 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 vicarious 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 employee’s creation of a hostile
work environment “if, and only if, the plaintiff proves that
the employer was negligent 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 discipline the victim. E.g., 646 F. 3d, at 470;
Noviello v. Boston, 398 F. 3d 76, 96 (CA1 2005); Weyers v.
Lear Operations Corp., 359 F. 3d 1049, 1057 (CA8 2004). Other
courts have substantially followed the more open-ended approach
advocated by the EEOC’s Enforcement Guidance, 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 employer 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 significant
change in benefits.” Ellerth, supra, at 761. We reject the
nebulous definition of a “supervisor” advocated in the
EEOC Guidance [ 4 ] and
substantially adopted by several courts of appeals.
Petitioner’s reliance on colloquial uses

															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 supervisors and co-workers. Those decisions
contemplate a unitary 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 supervisory status can usually be readily
determined, generally by written documentation. The approach
recommended by the EEOC Guidance, by contrast, would make the
determination 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 sufficiently 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 colloquial business authorities
illustrates the term’s imprecision 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 within 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 situation. 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

															“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
manage 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 CFR
§§9701.511(a)(2), (3) (2012) (referring to a
supervisor’s authority to “hire, assign, and direct
employees . . . and [t]o lay off and retain employees, or
to suspend, re-

															move, reduce in grade, band, or pay, or take
other disciplinary 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) (defining
“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 Circuit’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 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 disagreement 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

															may have wielded less authority, ibid. (noting
that Silverman 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 employee must have in order to be
classified as a supervisor. [ 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 tangible employment
actions. See Brief for Petitioner, O. T. 1997, No. 97–282, p.
24 (“Supervisors typically exercise broad discretionary
powers over their subordinates, determining 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
accomplishing 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 simply not sufficient. Employees with
such powers are certainly capable of creating intolerable work
environments, 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 employment 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 unitary 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 supervisor 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 control. . . .
Tangible employment actions are the means by which the supervisor
brings the official power of the enterprise to bear on
subordinates.” Ibid. (emphasis added). The strong implication
of this passage is that the authority 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 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 supervisor’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 defense) 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
supervisor’s authority to inflict direct economic injury. It
is because 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 framework 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 certain
circumstances.” Id., at 764.

															     The interpretation of
the concept of a supervisor that we 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 become 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 resolving 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 Petitioner 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 supervisor. 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 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 informs
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 employee qualifies as a supervisor. And if this is a
correct interpretation 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
threatened to assign the plaintiff to clean the toilets in the
lifeguard 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 authority 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. Applying
these standards would present daunting problems for the lower
federal courts and for juries.

															     Under the definition of
“supervisor” that we adopt today, 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 efforts 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
instructions 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.

															     The alternative
approach advocated by petitioner and the United States would make
matters far more complicated 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 parties
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 is
particularly high where the jury is faced with instructions on
alternative theories of liability under which different 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 authority 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- sidered
in determining whether the employer was negligent. The nature and
degree of authority possessed by harassing employees varies
greatly, see post, 9–11 (offering examples), and as we
explained above, the test proposed 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 instructions,
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 particular aspect of the work and thus may
have the responsibility 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 necessary 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 a hostile work environment. And even if
an employer concentrates all decisionmaking authority in a few
individuals, 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 number 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 judgment) (“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 shocking 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
“supervisor.” For example, Clara Whitten ultimately did
not prevail on her discrimination claims—notwithstanding the
fact that the Fourth Circuit adopted the approach advocated by the
dissent, see Whitten v. Fred’s, Inc., 601 F. 3d 231,
243–247 (2010)—because the District Court subsequently
dismissed her claims for lack of jurisdiction. See 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 suffered any
tangible employment action, see Rhodes v. Illinois 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
preventative or corrective opportunities provided,” Rhodes v.
Illinois 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, 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 prevent 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 employers 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 preferred approach. See post, at 20 (“[T]here
is cause to anticipate that Davis would not qualify as
Vance’s supervisor”). 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 state that she supervises Kitchen
Assistants and Substitutes 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
sometimes 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 employee 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 confident that, in every case, the approach we take today
will be more easily administrable than the approach advocated by
the dissent.

															*  *  *

															     We hold that an
employee is a “supervisor” for purposes of vicarious
liability under Title VII if he or she is empowered 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 actions against Vance, the judgment of the Seventh
Circuit is affirmed.

															It is so ordered. Notes 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). 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
elaborated 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. 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) (stating that, as a result of the
Court’s decision in Ellerth, “employer liability 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. 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., ). 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
Guidance persuasive. 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 7 One outlier that
petitioner points to is the National Labor Relations Act (NLRA), .
Petitioner argues that the NLRA’s definition supports her
position in this case to the extent that it encompasses 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 Humane 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 theright 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, (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 differences 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 supervisors
in order to address the “imbalance between labor and
management” 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 employee 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 definition of supervisor therefore is not controlling
in this context. 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 (opinion 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
decisions 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 suspending personnel.
[His] evaluations of the lifeguards translated into sal-ary
increases. [He] made recommendations regarding promotions
. . .” (citing record)). 9 Moreover, it is by no
means certain that Silverman lacked the authority 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 responsibilities 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.,
concurring 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”). 11 According to the dissent, the rule
that we adopt is also inconsistent with our decision in
Pennsylvania State Police v. Suders, . 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
unchallengedcharacterization. 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. Employment discrimination cases present an almost unlimited
numberof factual variations, and marginal cases are inevitable
under any standard. 13 See,
e.g., Gross v. FBL Financial Services, Inc., ; Armstrong v.
Burdette Tomlin Memorial Hospital, 438 F. 3d 240, 249 (CA3
2006) (noting in the context of McDonnell Douglas Corp. v. Green, ,
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 instructions
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 Individual 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) (discussing 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”). 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
employees, see id., at 682. 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 narrowest and most workable rule for when
an employer may be held vicariously liable for an employee’s
harassment. 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 harassment 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 liability for
harassment by supervisors based on sex, race, color, religion,
national origin, age, disability, or protected activity.”
EEOC, Guidance on Vicarious Employer Liability For Unlawful
Harassment by Supervisors, 8 BNA FEP Manual 405:7651 (Feb. 2003)
(hereinafter EEOC Guidance). Addressing who qualifies as a
supervisor, the EEOC answered: (1) an individual authorized
“to undertake or recommend tangible employment decisions
affecting the employee,” including “hiring, firing,
promoting, demoting, and reassigning the employee”; or (2) an
individual 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 assignments of others, confining the category to
those formally 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 objective of Title VII to prevent
discrimination from infecting the Nation’s workplaces. I
would follow the EEOC’s Guidance 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 employment, 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 discrimination.
Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 78
(1998) ; Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57
–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
Harassment 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 employment.” Harris v.
Forklift Systems, Inc., 510 U. S. 17 –22 (1993).

															     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 environment. Recognizing that Title VII’s
definition of “employer” 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 distinguished between harassment
perpetrated by supervisors, which is often enabled by the
supervisor’s agency relationship 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 harassment 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, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits.” Id., at 761. Such an action, the Court explained,
provides “assurance 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. 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 harassment, 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 placement 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
character.” 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 fighting back.”). In short, as Faragher and
Ellerth recognized, harassment by supervisors is more likely to
cause palpable harm and to persist unabated than similar conduct 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 activities.
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 tangible 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 liability,” 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. 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 lifeguards 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 threatened 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 approval 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-to-day activities.” Id., at 808
(internal quotation marks and brackets omitted).

															     We may assume that
Terry would fall within the definition 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 Silverman’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 example, the
Court considered whether a constructive discharge occasioned by
supervisor harassment ranks as a tangible employment action. The
harassing employees lacked authority to discharge or demote the
complainant, 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 complainant’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 illustrates 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 advantage 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
relationship, 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 harassment by an employee with power to
direct subordinates’ day-to-day work activities should
trigger vicarious employer 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 Building 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 deplorable 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 tangible 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, 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. Dismissing 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 quotation marks omitted).

															     Monika Starke: CRST Van
Expedited, Inc., an interstate transit company, ran a training
program for newly hired 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 employees 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
victims. Each man’s discriminatory harassment derived force
from, and was facilitated by, the control reins he held. Cf.
Burlington N. & S. F. R. Co. v. White, 548 U. S. 53
–71 (2006) (“Common sense suggests that one good way to
discourage an employee . . . from bringing discrimination 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 illustrative cases, the superior employee should have
been classified 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 “respect 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 and Davidson Cty.,
555 U. S. 271, 276 (2009) (EEOC guidelines merited Skidmore
deference); Federal Express Corp. v. Holowecki, 552 U. S. 389
–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 framework. 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
sufficient magnitude so as to assist the harasser . . . in carrying
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” ordinarily would not qualify as a supervisor,
for her harassing 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 requires “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 Guidance, the Court embraces a
position that relieves scores of employers of responsibility for
the behavior of the supervisors 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 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
benefits.’ ” Ante, at 9 (quoting Ellerth, 524
U. S., at 761). Whether reassignment authority makes someone a
supervisor might depend on whether the reassignment carries
economic consequences. Ante, at 16, n. 9. The power to
discipline other employees, when the discipline has economic
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
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 supervisor could supply the unwavering
line the Court desires. Supervisors, like the workplaces they
manage, come in all shapes and sizes. Whether a pitching coach
supervises his pitchers (can he demote them?), or an artistic
director supervises her opera star (can she impose significantly
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 perpetuation 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 circumstances 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 circumstances.”); Harris, 510 U. S., at
23 (“[W]hether an environment is ‘hostile’ or
‘abusive’ can be determined only by 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 constellation 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 framework has shifted in a decidedly
employer-friendly direction. 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 appropriate corrective
action. See 29 CFR §1604.11(d); EEOC Guidance 405:7652 to
405:7653. It is not uncommon for employers to lack actual or
constructive notice of a harassing employee’s conduct. See
Lindemann & Grossman 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 escape
liability under a negligence standard. Id., at 1378.

															     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 management,” 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 constructive 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 harassment. 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 employer has superior
access to evidence bearing on whether it acted reasonably to
prevent or correct harassing behavior, and superior resources to
marshal that evidence. See 542 U. S., at 146, n. 7
(“The employer is in the best position to know what remedial
procedures it offers to employees 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 restricting the supervisor category to those
formally empowered 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 workplace. Because supervisors are
comparatively few, and employees are many, “the employer has
a greater opportunity 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 employers 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 supervisors
formally empowered to take tangible employment actions, however,
employers will have a diminished incentive 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
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 working
relationship. EEOC Guidance 405:7654. See supra, at 13. Vance has
adduced scant evidence that Davis controlled 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 supervision 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 responsibilities “[l]ead[ing]
and direct[ing] kitchen part-time, substitute, and student employee
helpers via demonstration, 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 determination 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, 123Stat. 5, superseding Ledbetter v. Goodyear Tire &
Rubber Co., 550 U. S. 618 (2007) . See also Civil Rights Act
of 1991, 105Stat. 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 (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. Notes 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, , 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.” 2 The illustrative cases
reached the appellate level after grants of summary judgment in
favor of the employer. Like the Courts of Appeals in each case, I
recount the facts in the light most favorable to the employee, the
nonmoving party. 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 harasser’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. 4 Respondent’s amici
maintain that the EEOC Guidance is ineligible for deference under
Skidmore v. Swift & Co., , because it interprets Faragher and
Burlington Industries, Inc. v. Ellerth, , 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 framework set forth in Faragher and
Ellerth, but both the framework and EEOC Guidance construe the term
“agent” in . 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
classification 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.”). 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. 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. 8 In addition to concluding
that Davis was not Vance’s supervisor, the District Court
held that the conduct Vance alleged was “neither sufficiently
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 supervisor or
co-worker. 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.