VANCE V BALL STATE.The case involves the definition of the…

In the pending case Vance v. Ball State University, the United States Supreme Court's primary concern is what type of employee qualifies as a "supervisor" whose conduct may result in vicarious liability for his or her employers with respect to Title VII claims under the Civil Rights Act of 1964. In Vance, the appellant is attempting to pursue a Title VII claim against her employer for the harassing and racially discriminatory conduct of other employees, specifically a Ms. Davis. In a pair of previous decisions evaluating claims under the Civil Rights Act, the Supreme Court held in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) that pursuant to Title VII, an employer may be vicariously liable for this type of conduct if perpetuated against a subordinate by a supervisor. The Court further noted that if the person was merely a co-worker, the standard for employer liability is higher and requires a showing that the employee was negligent in discovering the misconduct and/or remedying it. The Vance case now asks the Court to evaluate whether the employee in question is a supervisor, and, on a larger scale, to establish guidelines as to what qualifies an employee to be another's supervisor. The Seventh Circuit Court of Appeals, which heard the Vance case as an appeal from the federal district court in Indiana, established this rule for evaluating whether Ms. Davis, one of the employees who perpetuated much of the racial discrimination and harassment against appellant, should qualify as a "supervisor" under Title VII and Faragher/Ellerth:

"Under Title VII, [a] supervisor is someone with power to directly affect the terms and conditions of the plaintiffs employment. That authority "primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee. We have not joined other circuits in holding that the authority to direct an employee's daily activities establishes supervisory status under Title VII. We conclude that Vance has not revealed a factual dispute regarding Davis's status by asserting that Davis had the authority to tell her what to do or that she did not clock-in like other hourly employees. This means that we must evaluate her claim against Davis under the framework for coworker conduct."

Vance v. Ball State University, No. 08-3568 (7th Cir. June 3, 2011) (internal citations/punctuation omitted).

As noted by the Seventh Circuit, this test differs from the one favored by a number of other circuits and the Equal Employment Opportunity Commission, which proffers a broader test that defines supervisors as anyone who has the authority to oversee an employee's daily work. The circuits are almost evenly divided on the issue, which is likely why the Supreme Court granted certiorari.

It appears based on the oral arguments in the case that the issue will be narrowly decided upon idealogical lines. The more conservative justices seem to favor the Seventh Circuit's analysis, which would limit civil rights litigation against employers, while the more liberal justices seemed to prefer the broader definition of "supervisor," which allows for stricter liability against employers. No matter what test the Court adopts, it is seems as if the appellant's vicarious liability claim against Ball State based on Davis's actions may not survive, as the Seventh Circuit does not articulate many facts that suggest Davis had a supervisory role under either standard.

The Seventh Circuit's definition of "supervisor" is too limiting and has no practical application in the modern workplace. Perhaps in smaller offices the individual who has the authority to hire and fire is also the person who has day-to-day oversight of his or her employees' work. But in a larger office, such as a large university, government agency, or corporation, it is highly unlikely that the supervisor who makes these major decisions is also the same person that has daily supervision over and interaction with lower-level employees. The Seventh Circuit's definition of "supervisor" is simply too limiting and does not account for the vast number of low- and mid-level supervisors that may not have final authority over an employee's fate, but have significant control over their day-to-day experiences in the workplace.