Why is the definition of a "supervisor" under Title VII of the Civil Rights Act of 1964, important?
If the harasser of an employee is a "supervisor" under Title VII of the Civil Rights Act of 1964, then the employer has vicarious liability, if the harasser does not meet the definition of a ‘supervisor' then to ascribe employer liability, the victim would need to prove knowledge or involvement of the employer in such harassment.
The definition clarified by the Supreme Court in the upcoming hearing of Vance would help in-house counsel design internal anti-harassment policies and grievance procedures, as also define employment scope and contracts of supervisorial employees.
The question of law presented to the U.S. Supreme Court in Vance is as follows:
http://www.supremecourt.gov/qp/11-00556qp.pdf
In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), this Court held that under Title VII, an employer is vicariously liable for severe or pervasive workplace harassment by a supervisor of the victim. If the harasser was the victim's co-employee, however, the employer is not liable absent proof of negligence. In the decision below, the Seventh Circuit held that actionable harassment by a person whom the employer deemed a "supervisor" and who had the authority to direct and oversee the victim's daily work could not give rise to vicarious liability because the harasser did not also have the power to take formal employment actions against her. The question presented is:
Whether, as the Second, Fourth, and Ninth Circuits have held, the Faragher and Ellerth "supervisor" liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim's daily work, or, as the First, Seventh, and Eighth Circuits have held (ii) is limited to those harassers who have the power to "hire, fire, demote, promote, transfer, or discipline" their victims.
The answer to the question is going to determine employer liability in cases of employee harassment by another employee acting in the capacity of a ‘supervisor,' and consequently would influence the guidance of in-house lawyers. Obviously, it would also lead to changes in employment contracts and defined scopes of work of certain employees whose work falls in the currently clouded area of supervisorial activity over which the circuit courts are divided.
The current split between the circuit courts on defining ‘supervisor' in case of employer liability
Though hopefully, the Supreme Court's decision in Vance v. Ball State University would help to clear up the situation, currently, the First, Seventh, and Eighth circuits hold according to traditional employment law doctrines that a person who does not have the power to hire or fire an employee is not an employer or supervisor vis-à-vis that employee. This is not in line with the stance taken by the U.S. Supreme Court in Ellerth or Faragher or the guidance developed by the EEOC following the Supreme Court decisions.
On the other hand, the EEOC, Ellerth and Faragher, and subsequently the Second, Fourth and Ninth Circuits follow a broader definition of “supervisor” in the case of employee harassment and consequent employer liability. This camp broadens the definition of a ‘supervisor' to embrace any person who possesses the authority to direct the daily actions of an employee.
The Supreme Court's decision in Vance v. Ball State University is expected to clear up things as regards the definition of a “supervisor” under Title VII of the Civil Rights Act of 1964. However, the application of State laws would continue to define the scope of employer liability in employee harassment where state laws have a stricter interpretation of employee harassment than found in the Civil Rights Act.
