Supreme Court Preview: VanDeusen and Marsh on Vance v. Ball State University

Supreme Court Preview: VanDeusen and Marsh on Vance v. Ball State University


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Vance v. Ball State University ( 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 is:

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.

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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