On Monday, the Supreme Court heard oral argument in one
of the key employment cases it will hear this term-Vance v. Ball St. Univ. This
case asks whether one can qualify as a supervisor under Title VII if one is
given any authority to direct and oversee another's daily work, or if
supervisory status is limited to those who have the power to hire, fire,
demote, promote, transfer, or discipline others.
This distinction is an important one. Under Title VII,
employers are vicariously liable for actionable harassment committed by
supervisors that results in a tangible employment action.
The appellate court in Vance drew a bright line, and
concluded that "supervisor" means "direct supervisor," with the power to directly
affect the terms and conditions of the plaintiff's employment via
hiring, firing, demoting, promoting, transferring, or disciplining; the mere
authority to direct an employee's daily activities is not enough.
Yet, in the Supreme Court, not even the employer, who won
in the court of appeals, could argue that the 7th Circuit got the standard
right. At oral argument, the employer argued that the bright line drawn by the
appellate court is too rigid:
[S]omeone who does control virtually all aspects of one's
schedule but yet lacks the authority to hire, fire, or demote, nevertheless
still would be qualified....
By way of example, the employer's counsel referred to the
following hypothetical posed by Justice Kagan:
There's a professor, and the professor has a secretary.
And the professor subjects that secretary to living hell, complete hostile work
environment on the basis of sex, all right? But the professor has absolutely no
authority to fire the secretary. What would the Seventh Circuit say about that
Even though no one argued in support of the bright-line
rule articulated by the 7th Circuit, I predict that the 7th Circuit's rule will
carry the day when the Court issues its opinion sometime next year. The
Justices were clearly looking for a bright line to guide future cases, and
appear to be wary of adopting a middle-of-the-road approach that will only
serve to muddle the issue in future cases. If we are lining up Justices to get
aboard one line or the other, the 7th Circuit's stricter approach should garner
more votes than the loosey-goosey standard the plaintiff sought.
For any additional background on this case, visit SCOTUSblog. The oral argument transcript is available from the Supreme Court's website [pdf].
Lexis.com subscribers may access an enhanced version of the 7th Circuit opinion being reviewed.
Visit the Ohio Employer's Law Blog for more
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