The United States Supreme Court recently heard oral argument in the matter of Vance v. Ball State University (Docket No. 11-556) on November 26, 2012, a case which is poised to resolve an important split among federal circuits and could reshape the scope of supervisor liability in sexual harassment and discrimination cases.
In Vance, the plaintiff Maetta Vance alleged that she was the only African-American worker in the university’s catering and banquet department. She alleged that another university employee, Saundra Davis, created a hostile work environment by making frequent discriminatory comments about Vance’s race and ethnicity. Vance reported Davis’ actions to the supervisors of the department, and an investigation was commenced. The supervisors declined to impose any discipline on either party and instead asked each to attend workplace behavior counseling.
In the district court case, Ball State argued that it was not liable to Vance, and the U.S. District Court for the Southern District of Indiana agreed, 2008 U.S. Dist. LEXIS 69288 (S.D. Ind. Sept. 10, 2008), a decision that was affirmed by the Seventh Circuit Court of Appeals, 646 F.2d 461 (7th Cir. 2011). The Seventh Circuit ruled that Vance did not establish that Davis was her supervisor, the only evidence of the same being that Davis had the authority to direct Vance’s day-to-day activities.
Under existing Title VII law, an employer is only vicariously liable for the harassing actions of a “supervisor”; an employer is not liable for the harassing conduct of a non-supervisory co-worker unless the employer knew or should have known of the harassment.
In 1998, the U.S. Supreme Court ruled in the companion cases of Faragher v. The City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 772 (1998) that a “supervisor” is person who is given the authority to direct and oversee the daily actions of employees. However, since that time, the federal circuits have split on the issue of who is a “supervisor.” The First, Third, Sixth, Seventh, and Eighth Circuits have concluded that a “supervisor” is an individual who has the direct power to hire, fire, or promote those working under them. In contrast, the Second, Fourth, Ninth, and Tenth Circuits have held that a “supervisor” is any person who has the authority to direct an employee’s daily actions.
The question presented to the U.S. Supreme Court in Vance is as follows: Whether, as the Second, Fourth, and Ninth Circuits have held, the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or, as the First, Seventh, and Eighth Circuits have held (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.
The resolution of the Vance case has an obvious impact on employers. If the Supreme Court adopts the broader definition of “supervisor,” employers will face markedly increased exposure to Title VII claims. On the other hand, if it adopts the more narrow definition, employers’ exposure will be decreased.
A decision from the Supreme Court is expected some time after January 1, 2013. Due to vast ideological differences among the justices of the Supreme Court, opinions are divided as to how it will ultimately rule in this matter.
We will continue to monitor this very important case and the decision that is ultimately rendered by the Supreme Court early next year.
Links to all of the briefs filed with the Supreme Court in Vance v. Ball State University may be found here at the American Bar Association’s website.
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