SUPREME COURT HEARS ORAL ARGUMENTS IN RACIAL HARASSMENT CASE
by Art Gutman Ph.D., Professor, Florida Institute of Technology
The case is Vance v. Ball State University and the issue is the definition of supervisor. Oral arguments were held on 11/26/12 and may be viewed at http://dciconsult.com/pdfs/vance.pdf.
The issue is important because employer liability in hostile environment harassment cases (racial, sexual, or otherwise) depends on who the harasser(s) is. For example, in the case of the co-worker (Connie McVicker), there is no liability if the employer does not know or have reason to know what McVicker was doing. However, there is vicarious liability for supervisors, meaning, it makes no difference what the employer knows, but rather, if (a) there was an employer policy that takes reasonable care to prevent and quickly prevent harassment and (b) the employee unreasonably fails to take advantage of the policy. So the key question reduces to whether Davis is a co-worker (like McVicker) or a supervisor for whom Ball State has vicarious liability.
The 7th Circuit, which reviewed this case, and two other circuit courts (1st & 8th Circuit), define a supervisor as one who has the power to make tangible employment decisions such as hiring, firing, demotion, transfer, etc. Three other circuit courts (2nd, 4th & 9th Circuits) define the supervisor as one who controls another’s daily work activities, a definition also advocated by the EEOC. The 7th Circuit ruled Saundra Davis is not a supervisor because she did not have the power to make tangible employment decisions. On the other hand, she would qualify as a supervisor under the broader definition of controlling Vance’s daily work activities.
As for the oral arguments, they were, for lack of a better term, strange. They included the attorneys for Vance (Daniel R. Ortiz) and Ball State (Gregory G. Garre), and an invited argument by Sri Srinivasan, Deputy Solicitor General. The strange thing is that all three argued that the 7th Circuit definition is too restrictive and, in effect, favored the broader definition. The most interesting argument was made by Garre, who stated:
Someone who can tell you what to do in your job day-to-day, manage you during the whole job period, what kind of tasks you have to do, was not necessarily considered a supervisor, while the person upstairs in human resources that you may never see or even know would be considered your supervisor.
The most amusing commentary from the bench came from Justice Roberts who gave the following hypothetical scenario:
Let’s say you have a work room. There are five people who work there. And the employer has a rule that the senior employee gets to pick the music that’s going to be played all day. And the senior employee says to you know, if you don’t date country music; if you don’t country music all day long. Now, that affects the daily activities of that other employee. I would have thought, under your theory, that means that that senior employee is a supervisor.
Of course, it’s highly unlikely that this example meets the broader definition because the action itself is not severe. Nevertheless, it does point to major decisions lower courts would have to make in fashioning a dividing line on which controlled daily activities qualify as supervisory functions under the broader definition.
The bottom line, I think, is that the tenor of the arguments supports the broader definition, meaning Davis will likely be declared a supervisor. The less interesting question (whether her actions were severe enough to constitute harassment) will probably be decided in favor of Ball State, as was done in the lower court rulings.