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Sarah Crawford, Director of Workplace Fairness

From the desk of ... Sarah Crawford

Supreme Court to Take Up Supervisor Harassment Case

Cross-posted from the American Constitution Society.

Later this term, the Supreme Court will decide the case of Vance v. Ball State, a case that will have critical implications for the ability of our nation's civil rights laws to root out unlawful workplace harassment. At issue in the case is the meaning of "supervisor" and whether employers may be held vicariously liable for harassment committed by supervisors who have the authority to direct and oversee employees' work, as compared to those who have the authority to hire or fire. The Court's decision will have important ramifications for the ability of victims of supervisor harassment to hold their employers accountable.

With so much at stake, the National Partnership for Women & Families led a group of ten top civil and workers' rights organizations in filing a friend-of-the-court brief in Vance that calls on the Court to reject an overly restrictive definition of supervisor that is limited to those with the authority to make "tangible" employment decisions like hiring and firing. Quite simply, this definition does not reflect the realities of the workplace or the Court's previously demonstrated understanding of what it means to be a supervisor.

Petitioner Maetta Vance worked at Ball State University as a catering assistant for the university's dining services department when she was harassed by an employee that she considered to be a supervisor with the authority to direct and oversee her work. Vance alleges that, as a result of the harassment and physical intimidation she suffered, she lived and worked in a constant state of fear. Despite her complaints to the university, the harassment persisted.

Ultimately, Vance filed claims for harassment and retaliation under Title VII of the Civil Rights Act of 1964. The district court granted the employer's motion for summary judgment, ruling in pertinent part that the supervisor in question lacked the power to hire, fire, demote, transfer, or discipline Vance. As such, the court applied a mere negligence standard of liability applicable to co-worker harassment, rather than the vicarious liability standard applicable to supervisor harassment. Under established precedent, if the harasser is deemed to be a supervisor, vicarious liability is imputed to the employer. However, if the harasser is deemed to be a co-worker, under a negligence standard, the employer is liable only if the target of the harassment can prove that the employer knew or should have known of the harassment.

On appeal, the Seventh Circuit affirmed, approving a narrow definition of "supervisor" for purposes of imposing vicarious liability by including only those supervisors with the formal authority to make tangible employment decisions. The Seventh Circuit noted that it "ha[d] not joined other circuits in holding that the authority to direct an employee's daily activities establishes supervisory status under Title VII." The Seventh Circuit joins the First and Eighth Circuits in concluding that only those supervisors with the power to fire, hire, promote, etc. should be treated as supervisors under Title VII.

By contrast, the Second, Fourth, and Ninth Circuits have affirmed a rule consistent with Equal Employment Opportunity Commission (EEOC) guidance stating that:

An individual qualifies as an employee's "supervisor" if:

the individual has authority to undertake or recommend tangible employment decisions affecting the employee; or

the individual has authority to direct the employee's daily work activities.

An amicus brief filed by the Solicitor General affirms this well-reasoned interpretation as well, concluding that "an employee who directs another employee's daily work activities but cannot take tangible employment actions is a supervisor for purposes of vicarious liability under Title VII."

The Supreme Court did not distinguish between various types of supervisors when it considered the issue of supervisor harassment in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth in 1998. In those cases, the Court drew distinctions between supervisors and co-workers, rather than drawing arbitrary distinctions between different types of supervisors. The same common sense approach should be applied in Vance.

The Court should also recognize that even though high-level supervisors are undoubtedly responsible for maintaining a workplace free from discrimination, it is the supervisors who direct and control workers' daily activities who are delegated the most immediate control over their subordinates' working conditions and the greatest opportunity to inflict harm on employees.

Vance v. Ball State offers the Supreme Court an opportunity to set a standard that comports with the realities of the workplace, established precedent and well-reasoned EEOC guidance. The case is a chance for the Court to affirm a standard that furthers the purposes of Title VII - to root out harassment and make clear that employers will be held accountable when supervisors violate the law. A contrary ruling will have grave consequences for victims of harassment and the rights guaranteed by our nation's equal employment opportunity laws.

The case will be argued November 26.


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