VanDeusen on Vance v. Ball State University: Supreme Court Defines "Supervisor" In Title VII Harassment Cases

VanDeusen on Vance v. Ball State University: Supreme Court Defines "Supervisor" In Title VII Harassment Cases

 Excerpt:

In Vance v. Ball State University [an enhanced version of this opinion is available to lexis.com subscribers], the Supreme Court, in a 5-4 decision, resolved 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. In so doing, the Court provided the guidance needed for the appropriate interpretation of its 1998 decisions in Faragher v. The City of Boca Raton and Burlington Industries Inc. v. Ellerth.

The circuit split on this issue was significant: three Circuits -- the First, Seventh, and Eighth -- 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, however, read the term more broadly, holding that a "supervisor" is any individual who has the authority to direct an employee's daily actions. Affirming the Seventh Circuit's decision in Vance, the Court adopted the narrow view of the term.

Under harassment law as developed by the Court's previous decisions, 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 when a tangible employment action occurs; if the harasser is a non-supervisory co-worker, the victim must prove negligence – that the employer "knew or should have known" of the harassment – for liability to attach.

In the 1998 companion cases of Faragher v. The City of Boca Raton [enhanced version] and Burlington Industries Inc. v. Ellerth [enhanced version], the Court held that a "supervisor" is an individual who is given the authority to direct and oversee the daily actions of employees. But that phrase left room for interpretation. The Question Presented to the Supreme Court in Vance was:

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.

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