Hunton Employment & Labor Perspectives

Last Monday, the United States Supreme Court heard oral argument in Vance v. Ball State University in order to resolve a circuit split over how much authority an alleged harasser must have to be considered a supervisor.  The definition of supervisor is important because two earlier Supreme Court cases, Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), establish that employers may be found vicariously or strictly liable for the conduct of supervisors who discriminate against or harass subordinate employees.

In Vance, a racial harassment case brought by an African-American employee of Ball State’s catering department, the U.S. Court of Appeals for the Seventh Circuit limited the definition of supervisor to “someone with power to directly affect the terms and conditions of the plaintiffs’ employment” which “primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee.”  Attorneys for all parties agreed at oral argument that the Seventh Circuit’s standard was too narrow.  Instead, Vance advocated that the Court adopt the broader definition of supervisor set forth by the Second Circuit and endorsed by the Equal Employment Opportunity Commission (“EEOC”) Guidelines, which includes individuals who have authority to oversee or direct employees’ daily activities.  Ball State contended that the EEOC’s definition was too broad, asserting that the definition should fall somewhere in between the Seventh Circuit’s and Vance’s proposed test.

During oral argument, the justices tested the various definitions of what constitutes a supervisor through posing numerous hypotheticals.  Justice Elena Kagan expressed disapproval at the restrictiveness of the Seventh Circuit’s definition, asserting that under this analysis a university would not be found liable for the conduct of a professor who subjected a secretary “to living hell” because he lacked the authority to hire or fire his secretary.

Chief Justice Roberts defended the Seventh Circuit’s definition, however, emphasizing the benefits of an objective analysis of whether an individual could, for example, hire and fire an employee.  The Chief Justice appeared to consider this preferable to the Second Circuit’s analysis of whether an individual had authority to oversee or direct an employee’s daily activities, which was inherently subjective and would lead to ad hoc determinations.  To demonstrate his point, the Chief Justice described a situation where a senior employee had authority to select what music to play during work hours and chose a certain type music to punish a junior employee whom he was harassing.  The Chief Justice stated that under the Second Circuit’s test, whether the senior employee was a supervisor would depend upon the particular circumstances of the case, such as the kind of music the senior employee selected and what effect the music had on the junior employee’s ability to perform her daily work activities.

The Supreme Court’s decision, expected to be issued in early 2013, has the potential to dramatically change the landscape of Title VII litigation.  If the Supreme Court adopts a broader definition of what constitutes a supervisor, employers will likely see a significant rise in the number of Title VII cases involving managerial employees in the years to come.