07/31/2012 03:30:00 PM EST
Supreme Court Preview: VanDeusen and Marsh on Vance v. Ball State University
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Vance v. Ball State University (lexis.com subscribers may access Supreme Court briefs for this case) addresses an
issue that has split the federal appellate courts in harassment cases: who is a
"supervisor" under Title VII of the Civil Rights Act of 1964? Three
Circuits -- the First, Seventh, and Eighth -- have concluded that a
"supervisor" under Title VII is an individual who has the direct
power to "fire, hire, [or] promote" those working in positions under
them. The Second, Fourth, and Ninth Circuits, on the other hand, have held that
a "supervisor" is any individual who has the authority to direct an
employee's daily actions.
Under existing interpretation of harassment law, the issue of vicarious
employer liability for employee actions in harassment cases hangs on the
finding of who is a "supervisor." Simply put, if the harasser is a
supervisor, liability is imputed to the employer; if the harasser is a
non-supervisory co-worker, the victim must prove that the employer knew or should
have known of the harassment for liability to attach.
At one end of the spectrum then, the First, Seventh, and Eighth Circuits limit
employer liability by defining supervisors as only those with direct authority
to make consequential employment decisions. Under this line of reasoning, only
harassment by an individual who has power over the formal employment status of
his or her victim implicates the vicarious liability rule. At the other end of
the spectrum, the broader definition of "supervisor" presses greater
potential liability upon employers.
In the 1998 companion cases of Faragher v. The City of Boca Raton and Burlington Industries Inc. v. Ellerth, the Court held
that a "supervisor" is an individual who is given the authority to
direct and oversee the daily actions of employees. But the Circuit split
demonstrates that the Court's holdings in Faragher and Ellerth
left room for interpretation. The Question Presented to the Supreme Court in Vance
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.
Thus, the Supreme Court is
expected to provide the guidance needed for the appropriate interpretation of Faragher
and Ellerth.[footnotes omitted]
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