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By Jay-Anne B. Casuga
The U.S. Supreme Court Feb. 21 invited the solicitor general to file a brief expressing the government's view on the definition of the term “supervisor” for the purpose of imposing vicarious liability on an employer for harassment in violation of Title VII of the 1964 Civil Rights Act (Vance v. Ball State Univ., U.S., No. 11-556, solicitor general invited to file brief 2/21/12).
Last June, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment to 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 (646 F.3d 461, 112 FEP Cases 582 (7th Cir. 2011); 29 HRR 633, 6/13/11).
The appeals court held, among other things, that Vance failed to establish a basis for employer liability based on purported co-worker harassment because the university took reasonable corrective actions in response to Vance's multiple complaints.
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” like other hourly employees. The Seventh Circuit, however, found no material factual dispute about the supervisory status of Davis given the lack of evidence that she had the power to hire, fire, demote, promote, transfer, or discipline other workers.
In petitioning for Supreme Court review, Vance argued that a sharp circuit split exists regarding the definition of “supervisor”for Title VII purposes, with some courts adopting the Seventh Circuit's view that a supervisor is an individual who has authority over the formal employment status of an employee. In contrast, she said, other circuits and the Equal Employment Opportunity Commission have concluded that an employee who lacks such authority may still be considered a “supervisor” if he or she directs other employees' daily work activities.
Vance said the case presents a “recurring and consequential question of federal law” that the justices must settle. She asserted that the Seventh Circuit's definition of “supervisor”is unsupported by and contrary to 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)).
In opposition, Ball State acknowledged that the circuit courts have used different standards for determining supervisory status under Title VII. However, the university said Vance's case is an “unattractive vehicle to address the question presented” because Davis would not be considered a supervisor as defined by any circuit court or EEOC.
By Jay-Anne B. Casuga
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