Soon after Thanksgiving, next Monday in fact, the Supreme Court will hear oral argument on a case of immense importance to employers, employees, and the employment law community. In Vance v. Ball State University, the Court will address the question of who is a “supervisor” in the context of harassment cases under Title VII of the Civil Rights Act of 1964.
Like the debate at Thanksgiving dinner over whose stuffing is better, there is a circuit split regarding the meaning of “supervisor.” The split concerns different interpretations of the Supreme Court’s opinions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). In Faragher and Ellerth, the Court held that a “supervisor” is an individual with authority to direct and oversee employees’ daily conduct.
Since 1998, the First, Seventh (Vance v. Ball State is on appeal from the Seventh Circuit), and Eighth Circuits, have adopted a narrow reading of “supervisor” to include only those who have the direct power to “fire, hire, [or] promote” other employees. The Second, Fourth, and Ninth Circuits have settled on a broader reading of “supervisor.” In these Circuits, “supervisor” means all employees who have the authority to direct the daily actions of other employees.
The distinction is critical. In harassment cases brought under Title VII, an employer is held vicariously liable for the conduct of a supervisor unless it can show the presence of previously implemented effective anti-harassment policies and procedures that the supervisor failed to adhere to. However, if the harasser is merely an employee, the employer is only liable if the victim can prove that the employer knew or had reason to know of the harassment.
Unlike the debate over who makes the better stuffing, this is an issue that will be decided soon enough. No matter the outcome, the Court’s opinion is likely to have a profound impact on litigation in this area.