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Vance v. Ball State: Who Qualifies as a Supervisor?

By Robyn Hagan Cain | Last updated on

On Monday, the Nine will return to Washington to consider the future of employment lawsuits in Vance v. Ball State University. More specifically, who qualifies as a supervisor?

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.

Now the Supreme Court will address the grey area between Faragher and Ellerth: co-workers who can direct tasks, but who lack authority to hire or fire.

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 for race discrimination and, later, retaliation. Vance eventually sued Ball State in federal court, alleging federal and state discrimination claims.

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 Seventh Circuit Court of Appeals disagreed, holding that "actionable harassment" by a "supervisor" who had the authority to direct and oversee daily work did not give rise to vicarious liability unless the harasser also had the power to hire or fire the harassment victim.

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

The Supreme Court granted certiorari to resolve the circuit split. The Second, Fourth, and Ninth Circuits have held that 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. The First, Seventh, and Eighth Circuits have held that liability is limited to those harassers who have the power to "hire, fire, demote, promote, transfer, or discipline" their victim.

The Obama administration has filed a brief supporting Vance's argument, Bloomberg reports.

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