By Jay-Anne B. Casuga
Despite the solicitor general's stance that review should be denied, the U.S.
Supreme Court agreed June 25 to examine a federal appeals court ruling dealing
with the question of whether a “supervisor” under Title VII of the 1964 Civil
Rights Act can include an employee who oversees and directs other workers' daily
tasks, but lacks authority over their formal employment status (Vance v. Ball
State Univ., U.S., No. 11-556, cert. granted 6/25/12).
In February, the justices invited the solicitor general to file an amicus
brief regarding a case in which the U.S. Court of Appeals for the Seventh
Circuit affirmed 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, among other things, that Vance failed to establish
a basis for employer liability based on purported harassment by either a
co-worker or a supervisor (62 BTM 190, 6/14/11).
Vance had contended that one of the alleged harassers, Saundra Davis,
actually was a supervisor and not a co-worker because Davis directed her work
and did not “clock in” as other hourly employees did. The Seventh Circuit,
however, found a lack of evidence that Davis had the power to hire, fire,
demote, promote, transfer, or discipline Vance.
In its amicus brief to the high court, the United States acknowledged a
circuit split regarding the definition of “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.
Meanwhile, several other circuits, along with the Equal Employment
Opportunity Commission, 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 United States also took the position that the Seventh Circuit's
interpretation of the term “supervisor” is inconsistent with the Supreme Court's
rulings in Faragher v. Boca Raton ( 524 U.S. 775, 77 FEP Cases 14 (1998))
and Burlington Industries Inc. v. Ellerth ( 524 U.S. 742, 77 FEP Cases 1
(1998)). Additionally, the federal government said the Seventh Circuit's ruling
conflicted with EEOC guidance and ignored the “practical realities of the
Nevertheless, the solicitor general argued that the Supreme Court should deny
review because Vance's case would be an “unsuitable vehicle” for resolving
disagreement over the definition of “supervisor.” As did the university in its
brief opposing high court review, the solicitor general said Davis would not be
considered a “supervisor” as defined by any circuit court or EEOC.
According to the Seventh Circuit, Vance alleged that Davis in 2001 slapped
the back of her head during a work-related discussion, and in 2005 told Vance
she would “do it again.” Vance also claimed that another white co-worker and two
white supervisors subjected her to harassment.
Vance filed oral and written complaints over several years about the alleged
harassment. In response, Ball State conducted investigations and took
disciplinary actions when Vance's allegations could be corroborated.
Vance sued Ball State under Title VII in October 2006. The U.S. District
Court for the Southern District of Indiana ruled in favor of the university.
The Seventh Circuit affirmed and held that Vance failed to establish a basis
for employer liability. Although an employer is strictly liable for supervisor
harassment, the court ruled that Vance did not demonstrate that her supervisors'
conduct was motivated by race and that her allegations did not sufficiently
establish a hostile work environment.
Additionally, the Seventh Circuit said Vance failed to show Ball State could
be held liable for purported co-worker harassment because the university took
reasonable corrective action in response to Vance's multiple complaints. The
appellate court considered Davis to be Vance's co-worker and not a supervisor
because it found no evidence showing Davis had the power to hire, fire, demote,
promote, transfer, or discipline employees.
In her October 2011 petition for Supreme Court review, Vance argued that the
justices must resolve a “sharp” and “widespread” circuit split over the
definition of “supervisor” so that courts can properly determine when to impose
vicarious liability on employers in Title VII harassment cases.
She said the Seventh Circuit's ruling would produce “perverse consequences”
by allowing large employers to avoid supervisor harassment liability under Title
VII by vesting formal employment authority in a “few individuals at central
Opposing review, Ball State contended that Vance's case is an “unattractive
vehicle to address” the different standards for determining when an employee is
a supervisor for Title VII purposes.
Since Vance presented no evidence that Davis had authority over her daily
activities, Vance's case “does not actually conflict with any other decision” or
EEOC guidance, the university said. It added that resolution of the question
presented would not actually make a difference to the outcome of Vance's