On June 25, 2012, the United States Supreme Court agreed to hear the appeal in the case of Vance v. Ball State University, Case No. 11-556. The issue in Vance is whether an employee who directs the work of other employees, but who does not have the authority of a traditional supervisor, can still be considered a “supervisor” under Title VII of the Civil Rights of 1964. There is currently a split among the federal Circuit Courts of Appeals on the issue of whether an employee who has the authority to direct the work of other employees is a supervisor under Title VII, even if he or she does not have the authority to make or suggest “tangible” employment actions such as to hire, fire, demote, promote, transfer, or discipline other employees. The Seventh Circuit Court of Appeals in Vance held that such an employee is not a supervisor, as have the First and Eighth Circuits. The Second, Fourth, and Ninth Circuits have held that supervisory status under Title VII is established if an employee merely has the authority to direct and oversee the work of others, like a lead person would. The EEOC, not surprisingly, shares the latter view. See Vicarious Employer Liability for Unlawful Harassment by Supervisors.
The resolution of this issue will be important to all employers who are covered by Title VII and similar anti-discrimination laws. If an alleged harasser is a supervisor, then the employer is considered liable for the harasser’s illegal actions. In that situation, the employer’s only defense would be that it had effective non-harassment policies and procedures in place, but the harassed employee unreasonably failed to follow them to stop the harassment. However, if the alleged harasser is a co-worker and not a supervisor under Title VII, then the employer can be found liable only for the co-worker’s harassment if it failed to take reasonable steps to stop the harassment. We will keep you posted as to future developments on this important issue.