Previously, we noted here that the U.S. Supreme Court had granted certiorari in Vance v. Ball State University, et al. and agreed to decide who is a “supervisor” for the purposes of employer liability under Title VII. More specifically, the question presented is:
Whether, as the Second, Fourth and Ninth Circuits have held, the Faragher and Ellerth “supervisor” liability rule (i) 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 Circuit have held (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.
The Supreme Court heard oral arguments in the case on November 26, 2012. Arguing in favor of the more expansive view of “supervisor,” counsel for Vance argued that the limited Seventh Circuit rule doesn’t fit with the realities of the workplace. Notably, counsel for Ball State stated that he did not think that “the Seventh Circuit test is the complete answer to the question of who may qualify as a supervisor.” This is notable because because Ball State Counsel’s failure to argue in favor of the Seventh Circuit test meant that no one presented arguments in favor of the Seventh Circuit test. Instead, counsel for Ball State argued that the alleged harasser did not qualify as a supervisor under either of the standards.
Here’s why this case is important: If the Supreme Court takes the same view as the First, Seventh, and Eighth Circuits, then the definition of “supervisor” for the purposes of Title VII employer liability is more limited and it will be much harder for employees to successfully prove their discrimination claims. If the Supreme Court takes the more expansive view being advocated, it would likely be easier for those such as Vance, who was allegedly harassed by those with authority to direct and oversee her work but did not have the power to “hire, fire, demote, promote, transfer, or discipline,” to prove discrimination under Title VII.
The predictions regarding the outcome of this case have varied. Jon Hyman of Ohio Employer’s Law Blog predicts that the Court will go with the Seventh Circuit’s bright-line rule. You can read his prediction here. Meanwhile, Michael Russell of The Firing Squad blog predicts (here) that the Court will adopt a “case-by-case test that will give great deference to the trial courts in making these decisions.” Given the weak facts in this case, my opinion is that the Court should not decide this case at all. This case simply does not do a good enough job presenting the facts of such a case to make it fully ripe for review. However, as seen by the various predictions, anybody’s guess is as good as mine regarding what the Court is likely to do.