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Washington Update
 

   11/29/2012
 

On Monday, Nov. 26, the U.S. Supreme Court heard oral argument in Vance v. Ball State. In this case, the court was asked to define who is a “supervisor” under Title VII of the Civil Rights Act of 1964. The definition is important to HR professionals, because employers can be held vicariously liable for damages in cases in which a supervisor harasses a subordinate because the supervisor is viewed as an agent of the employer. If the harasser is a mere co-worker, the victim, in order to prevail, has to show that the employer was negligent in following up on complaints.

SHRM filed an amicus brief in the case, which focuses on the lack of agency relationship between the employer and the alleged harasser, as well as lack of tangible employment actions in this case. The brief discusses, also, the U.S. Equal Employment Opportunity Commission (EEOC) guidance, urging the court to recognize its limited authority.

Ball State University employed Maetta Vance as a kitchen assistant for 18 years. Vance, who is black, complained that she was racially harassed by another catering department employee, who is white. The federal appeals court for the Seventh Circuit dismissed the case, ruling that the alleged harasser did not have the power to hire, fire or discipline anyone and was, therefore, not a supervisor. Other circuits apply a more expansive definition of “supervisor” taken from the EEOC’s guidance on the issue, namely, that a supervisor is an individual who has the authority to direct daily work activities, such as making working assignments and schedules, or to recommend employment actions. When the case was dismissed, Vance appealed to the U.S. Supreme Court.

This case is unlike most Supreme Court cases, in which one side is defending the lower court decision and the other side is alleging that the lower court was wrong. Here, Ball State agrees that the Seventh Circuit “hiring and firing” definition is too restrictive but argues that the alternative definition suggested by Vance and the EEOC is too broad.
 
Although the Supreme Court may be troubled by the limited factual record of whether the alleged harasser was or was not Vance’s supervisor, the case itself provides an opportunity for the court to further define “supervisor” in the context of Title VII claims. Ruling on this issue will resolve the split in the circuits between the clear but narrow definition adopted by the Seventh Circuit and others or the more expansive but fact-specific definition in the EEOC guidance and followed by other federal circuits.

To read a copy of SHRM’s amicus brief, click HERE.

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