Today, the Supreme Court will be hearing arguments in Vance v. Ball State University to determine whether the “supervisor” liability rule established by Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth:  (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

Title VII forbids employers from practicing gender, color, race, religion, national origin, age or disability discrimination in their workplaces, and from doing so through their “agents.”  In 1998, in two cases, the Supreme Court attempted to define who, as an on-the-job supervisor, could be treated as the employer’s agent.   Those decisions came in Farragher v. City of Boca Raton and Burlington Industries Inc. v. Ellerth.   Those rulings established that, under traditional legal theory on who acts as an “agent,” an employer could be held to blame legally under Title VII  if an employer acting as a supervisor engaged in discrimination, such as sexual harassment.

The theory behind this substitute liability for the employer is that a worker who is the victim of workplace bias is less likely to challenge a supervisor than a fellow employee, because of what the supervisor might do in response.  So, the theory goes, the supervisor’s rank contributes to the discrimination on behalf of the employer.  A mere fellow employee’s biased actions toward a victim, though, is not to be blamed on the employer, unless the employer was negligent about what was happening in the workrooms.

The disagreement among federal appeals courts on this issue is: the Seventh Circuit Court ruled that a supervisor only means a person who has the actual authority to take a specific workplace action — such as hiring, firing, transferring, demoting, disciplining, or promoting.  An employee who only controls the victim’s day-to-day tasks does not qualify, under the Seventh Circuit approach, which two other Circuit Courts also follow.  However, three other Circuit Courts have ruled that an employee with the authority to control what a fellow worker does on a daily basis is a supervisor, too.

The case of the Ball State University kitchen employee, Maetta Vance, goes back to about 2001.  She had been on the job for about ten years, working in the university’s dining and catering department — the only African American in that department.  She gained several promotions, and some modest pay raises.  But, beginning in 2001, she would later say, her co-workers harassed her with repeated racial epithets and, at times, threatening words or actions.  One staff member whom she regarded as a supervisor, William Kimes, allegedly treated other workers more favorably than her and constantly gave Vance the “cold shoulder.”

Another worker whom she also regarded as a supervisor, Saundra Davis, allegedly slapped Vance at one point, used racial epithets including references to the Ku Klux Klan, and physically accosted Vance in an elevator.   After Vance complained, her employer took some action, warning other workers and trying to sort out what had actually happened in the kitchen. The management did make it clear that racial harassment would not be tolerated in that department.

Vance sued, but both a district court judge and the U.S. Court of Appeals for the Seventh Circuit ruled that she had not proven a legal claim of racial bias or retaliation creating a hostile work environment under Title VII.  A key to the Circuit Court’s decision was its conclusion that Vance had not shown that she had a complaint of racial bias by any supervisor who would qualify under that law.  Kimes was a supervisor, but his treatment of Vance was not racial in character, it concluded. Davis, it found, was not a supervisor since she had not been given the formal authority to take an explicit job action.   Even if Davis did direct what Vance did day to day, that was not enough, the Circuit Court decided.