As with many questions in employment law, the answer to this question depends upon the circumstances and the law that is at issue.  

On June 24, 2013, the United States Supreme Court addressed this question.  The status of the alleged harasser as “supervisor” or “co-worker” is crucial under Title VII.  If an employee is found to be a supervisor, then the employer is strictly liable for the employee’s conduct if there has been a tangible employment action. Tangible employment actions include hiring, termination, promotion, demotion, or changes to pay or benefits. On the other hand, if the alleged harasser is only a co-worker, then the employer is liable only if it is found to have been negligent in controlling workplace conditions.  

The Supreme Court rejected the EEOC’s more expansive reading of “supervisor” as a person who exercises direction and control over the plaintiff’s work place. Instead, the Supreme Court ruled that a “supervisor” is one that is authorized by the employer to make tangible employment decisions about the plaintiff employee  — firing, demoting, hiring, or making pay cuts.  

Important take-aways for attorneys representing employers:  

The Supreme Court envisioned that the issue of whether one is a “supervisor” can be resolved before trial, such as in a summary judgment motion.

Practitioners in states whose statutory or case law provides broader protection than federal are cautioned to ensure that both state and federal law is considered before advising employers on this important issue.