Justices Weigh Definition of Workplace ‘Supervisor’

By Mark Walsh — November 26, 2012 4 min read
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The U.S. Supreme Court on Monday used a case involving university employees to wrestle with the question of who qualifies as a workplace supervisor. The case has potentially broad implications for employers, including school districts, under the main federal job-discrimination law.

The justices took up the case of Maetta Vance, who worked in the banquet and catering services division at Ball State University in Muncie, Ind. Vance, for much of her employment, was the sole African-American in the catering operation, and she faced an alleged racially hostile atmosphere caused by two co-workers of hers. One white co-worker, Connie McVicker, used harsh racial epithets towards Vance. Another white catering employee, Saundra Davis, physically intimidated Vance and sometimes referred to her as “Sambo” and “Buckwheat.” (Ball State eventually reprimanded McVicker but not Davis, court papers say.)

When Vance sued the university under Title VII of the Civil Rights Act of 1964, a key question became whether Davis supervised Vance. Ball State said no, because Davis did not supervise Vance’s daily work activities. Vance got direction from a chef and from the head of the catering division, the university says.

Vance’s lawyers contend there is evidence that Davis once supervised Vance when Vance had started as a part-timer in the catering division. And they point out that Ball State’s formal description of Davis’s “catering specialist” job said her job included supervising kitchen assistants and substitutes.

Under several Supreme Court precedents, employers may be held vicariously liable under Title VII for the acts of supervisors because a victim of harassment may be unwilling to confront a harasser who has supervisory authority over that worker. An employer would be unlikely to be held liable for harassment among co-workers where there was no supervisory relationship unless the employer turned a blind eye to the harassment.

In Vance’s case, the U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled that only employees who had the power to hire, fire, demote, promote, or discipline others were supervisors under Title VII. Some other circuits, as well as the federal Equal Employment Opportunity Commission, take a broader view that those who have the authority to direct a worker’s daily activities also qualify as supervisors under Title VII.

The Supreme Court took up the appeal in Vance v. Ball State University (Case No. 11-556) to attempt to settle the question.

At oral arguments, some members of the court were concerned about whether the broader rule would expose more workplace activity to Title VII liability.

Chief Justice John G. Roberts Jr. wondered about a work room where a senior employee gets to pick the music. “And the senior employee says to one of the other employees, you know, if you don’t date me—I know you don’t like country music; if you don’t date me, it’s going to be country music all day long,” Roberts said.

Daniel R. Ortiz, the lawyer representing Vance, said that playing music that annoyed an employee under the chief justice’s hypothetical probably would not create a “severe” enough hostile work environment to expose the employer to liability.

Justice Samuel A. Alito Jr. asked Ortiz if Davis had assigned Vance to chop onions all day, every day, if that would qualify.

“Chopping onions all day might be punishment,” and that would be enough to invoke supervisory liability, Ortiz said.

Justice Elena Kagan, only a few years removed from her job as dean of Harvard Law School, wondered about a college professor who subjects his secretary to “living hell,” a “complete hostile environment on the basis of sex, all right? But the professor has absolutely no authority to fire the secretary.”

Sri Srinivasan, the deputy U.S. solicitor general, said that under the 7th Circuit’s test, “the professor would not qualify as a supervisor” under the relevant legal framework and would just be a co-worker of the secretary.

President Barack Obama’s administration, represented by Srinivasan, favors the EEOC’s view that someone with the authority to direct a worker’s daily activities is a supervisor.

“Control over daily work activities is where we would draw the line,” Srinivasan said. The administration takes the view that based on the record as it has been developed, Vance was not supervised by Davis.

Ball State, meanwhile, does not defend the 7th Circuit’s bright-line test for determining who is a supervisor. It proposes a standard that an employee may qualify as a supervisor when he or she exercises the power to control the bias victim’s daily activities in a way that “materially enables” the harassment.

“We don’t think the 7th Circuit test is the complete answer to the question of who may qualify as a supervisor,” said Gregory G. Garre, representing Ball State. Still, under any of the standards, he said, Davis did not qualify as Vance’s supervisor.

Ball State is joined in a friend-of-the-court brief by the American Council on Education and other higher education groups. Only business groups such as the U.S. Chamber of Commerce and the National Retail Federation filed briefs urging the Supreme Court to adopt the 7th Circuit’s narrower test.

“So there is nobody here defending the Seventh Circuit,” Justice Scalia said to Garre.

The justices seemed to struggle with the idea that if Davis was not Vance’s supervisor under any of the tests, they might not be ruling on a live case. But Ortiz repeatedly said that the record in the case was adversely affected by the 7th Circuit’s standard, and that under the proper standard, Vance could offer more evidence that Davis was her supervisor.

A decision in the case is expected by next June.

A version of this news article first appeared in The School Law Blog.