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Supreme Court To Look At Who Is A 'Supervisor' In Harassment Cases

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The U.S. Supreme Court this week takes up the question of who qualifies as a supervisor when the issue is harassment in the workplace. The court's answer to that question could significantly restrict employer liability in racial and sexual harassment cases, or, in the view of some business organizations, it could result in frivolous litigation.

The facts of the particular case before the court Monday are, to say the least, in dispute.

In 1989, Maetta Vance started working in the banquet and catering department of Ball State University in Muncie, Ind. Over most of the next 18 years, she was the only African-American in the department. Although she was promoted twice, she eventually sued the university for what she claimed was a racially hostile work environment.

In particular, she claimed that one of her immediate "supervisors," Sandra Davis, had repeatedly used racial epithets and threatened her. The university investigated, but because the two women provided conflicting accounts of who had harassed whom, the school took no disciplinary action and instead required both women to undergo counseling.

A federal appeals court subsequently threw the case out. The lower court said the alleged harasser did not fit the definition of a "supervisor" because she did not have the power to hire, fire, demote or discipline Vance; therefore, the court said, the university was not liable.

Vance appealed to the U.S. Supreme Court, contending that the appeals court was wrong in its definition of a supervisor. (Click here to see the "proceedings and orders" in the case.)

"There are lots of situations where people have power over other employees when they don't have the power to fire them, to discipline them, to promote them, to set their wages or things like that," says University of Virginia law professor Daniel Ortiz, who represents Vance.

Indeed, most of the federal appeals courts in the country have a broader definition of the term "supervisor." Most have adopted the Equal Employment Opportunity Commission's (EEOC) definition that says a supervisor is an individual who has authority to direct daily work activities — like making working assignments and schedules — or to recommend employment actions.

So Monday's case is asking the Supreme Court to resolve the conflict and to establish the definition of a supervisor for all courts to use as a measuring stick in future cases (click here to see the court's "questions presented" document on the case). The definition matters because when a supervisor harasses a worker, the employer is automatically liable for damages in most cases; the supervisor is viewed as an agent of the employer. On the other hand, if the harasser is a mere co-worker, the victim, in order to prevail, has to show that the employer was negligent in following up on complaints.

Ironically, in this case, only business organizations like the Chamber of Commerce and the National Federation of Independent Business are defending the narrow definition imposed by the appeals court in the Vance case. None of the actual participants in the case are defending the restrictive standard.

Gregory Garre, representing Ball State University, agrees that "the universe of supervisors can't be limited to those with the authority to hire, fire or demote." At the same time, however, Garre contends that the EEOC definition is too broad and that there should be further limits to the definition of supervisor.

For example, Garre contends that an employee's job title and job description are irrelevant — reflecting nothing more than "paper titles" or greater experience, he says. Thus, he argues that in this case, it does not matter that the alleged harasser had a job description that required her to "lead" and "direct" kitchen assistants like Vance.

Civil rights lawyers counter that while not dispositive, job descriptions are important indicators. As Ortiz asserts, "Job descriptions in particular, you would think, would be highly relevant to trying to figure out the kind of authority one employee has over another."

All of this will be hashed out in front of the Supreme Court on Monday, with a decision expected after the first of the year.

Also on this case: "Who Is A Supervisor?" (ScotusBlog)

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