By Eric B. Meyer
Maetta Vance, the only African-American working in her department at Ball State University, claimed that she was subjected to both race discrimination and retaliation.
Vance later sued and lost (and there are more details in this Los Angeles Times story) because she could not establish employer liability, which, in turn, depended on whether the alleged harassment was perpetrated by supervisors or coworkers.
Employers have an affirmative defense when the supervisor harassment does not result in a tangible employment action. If, however, the harassing supervisor fires, suspends, or takes some other similar action against the victim, it’s checkmate.
How the appeals court defines a “supervisor”
In instances of co-worker harassment, where tangible employment actions wouldn’t be at issue (because the harassing co-worker wouldn’t have that power), to prevail on a discrimination claim, the plaintiff must show, among other things, that the employer has “been negligent either in discovering or remedying the harassment.”
Concluding that the harassment in the Vance case was perpetrated by coworkers, the Seventh U.S. Circuit Court of Appeals based in Chicago ruled (in Vance v. Ball State University) that a Title VII “supervisor” must do more than direct and oversee the victim’s daily work. Rather, the supervisor must also have the power to take formal employment actions against victim (i.e., hire, fire, demote, promote, transfer, or discipline).
Subsequently, Vance appealed and, yesterday, the U.S. Supreme Court heard oral argument. You can get a copy of the transcript here. Also, be sure to check out Lyle Denniston’s argument recap at the SCOTUSblog.
Based on the oral arguments, it appears that the more conservative justices are leaning towards adopting the Seventh Circuit’s approach. The liberal judges may favor a case-by-case factual analysis to determine who is a Title VII supervisor.
My prediction: Later this spring, the Supreme Court adopts the Seventh Circuit’s supervisor test.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.