Article appeared in The Daily Record, July 23, 2012
The U.S. Supreme Court agreed on June 25 to examine a federal appeals court ruling dealing with the question of whether a “supervisor” under Title VII can include an employee who oversees and directs other workers’ daily tasks, but lacks the authority over their formal employment status, Vance v. Ball State Univ., No. 11-556, (cert. granted June 25).
In February, the justices invited the solicitor general to file an amicus brief regarding the Seventh Circuit’s affirmance of a ruling for Ball State University on the Title VII claim of Maetta Vance, a black catering assistant who alleged that white co-workers and supervisors racially harassed her. The Seventh Circuit held that Vance failed to establish a basis for employer liability based on purported harassment by either a co-worker or a supervisor.
Vance had contended that one of the alleged harassers, Saundra Davis, actually was a supervisor and not a coworker because Davis directed her work and did not “clock in” as other hourly employees did. The Seventh Circuit found a lack of evidence that Davis had the power to hire, fire, demote, promote, transfer or discipline Vance. The solicitor general in its amicus brief acknowledged a circuit split regarding the definition of a “supervisor” for Title VII purposes.
Some appeals courts, the solicitor general said, have adopted the Seventh Circuit’s view that a supervisor is an individual who has authority to make tangible actions that affect a worker’s formal employment status. Several other circuits along with the EEOC, have concluded that an employee who lacks such authority nonetheless may be considered a “supervisor” if he or she directs other employees day-to-day work activities.
The seminal cases of Faragher v. Boca Raton (524 U.S. 775)(1998), and Burlington Industries v. Ellerth (524 U.S. 742)(1998), created the imposition of vicarious liability on employers in Title VII harassment cases when supervisors are the bad actors, thus making a definition of a supervisor essential when determining liability.
In many workplaces there are levels of supervisory titles which have input into tangible employment decisions which affect an employee’s employment status, although they may lack the authority to make a final employment decision.
Are all supervisors equal in light of the imposition of vicarious liability? Stay tuned!
