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SCOTUS to Review 7th Circuit Harassment Case, Vicarious Liability

By Robyn Hagan Cain on July 03, 2012 | Last updated on March 21, 2019

If you often find yourself lamenting the ambiguity in the Supreme Court's harassment jurisprudence, you're in for a treat during the 2012 Term.

Last week, the Supreme Court granted certiorari in Vance v. Ball State University, a harassment case out of the Seventh Circuit Court of Appeals, according to the ABA Journal.

Maetta Vance was the only African-American working in her department at Ball State University. She began filing complaints with Ball State about her coworkers' offensive conduct in 2005. The alleged conduct included "the use of racial epithets, references to the Ku Klux Klan, veiled threats of physical harm, and other unpleasantries."

In 2006, Vance filed complaints with the Equal Employment Opportunity Commission (EEOC) for race discrimination and, later, retaliation. Vance later sued Ball State in federal court, alleging federal and state discrimination claims.

In Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, the Supreme Court held that an employer is vicariously liable under Title VII for severe or pervasive workplace harassment by a supervisor of the victim. If the harasser was the victim's co-employee, however, the employer is not liable absent proof of negligence.

But are all supervisors created equal?

In past harassment cases, the Supreme Court has reasoned that a person who has the power to hire or fire employees is a supervisor. Here, Vance claims that Ball State is vicariously liable for her harassers' actions because at least one of the co-workers who harassed her functioned as a supervisor who could direct her daily tasks.

The appellate courts, however, are split on whether co-workers can be supervisors.

In its Vance opinion, the Seventh Circuit Court of Appeals held that "actionable harassment" by a "supervisor" who had the authority to direct and oversee Vance's daily work did not give rise to vicarious liability because the harasser did not also have the power to hire or fire Vance.

The Supreme Court granted certiorari to resolve whether, as the Second, Fourth, and Ninth Circuits have held, the Faragher and Ellerth "supervisor" liability rule 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, is limited to those harassers who have the power to "hire, fire, demote, promote, transfer, or discipline" their victim.

If the Supreme Court reverses the Seventh Circuit, employers will likely face increased numbers of harassment cases.

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