November 28, 2012
For some, that question may be easier to answer than others.
However, very few individuals have to look to the Supreme Court for a solution.
Maetta Vance is one such individual: because of Title VII (of the 1964 Civil Rights Act) requirements, Vance has to demonstrate that the racial harassment she received on the job was at the hands of a supervisor, or else her employer isn’t liable.
Factually, Vance’s case is somewhat weak.
Two of the three alleged supervisors engaged in conduct that was, as the Seventh Circuit Court of Appeals put it, “not the most mature things to do,” but yet falls short “of the kind of conduct that might support a hostile work environment claim.”
According to the Seventh Circuit, the last alleged supervisor, Saundra Davis, did, indeed, engage in conduct that was extreme enough to be the basis of such a claim – if she was truly Vance’s supervisor.
However, as the court of appeals noted, Vance has not actually asserted “that Davis had the authority to tell her what to do,” so under the circuit’s accepted definition, Davis is not a “supervisor.”
The most likely reason the Supreme Court took such a seemingly simple case, then, is to resolve the split among the circuits on the definition of “supervisor.”
Three circuits – including the Seventh – hold that a “supervisor” is one with the power to hire, fire, demote, promote or discipline.
Three other circuits have a broader definition that also includes employees who direct and oversee a colleague’s daily work.
The Equal Employment Opportunity Commission (EEOC) – the federal agency responsible for enforcing workplace discrimination laws – also espouses the latter definition.
Incidentally, the federal government filed an amicus brief on behalf of neither party, asking the Supreme Court to clear up the circuit split in favor of the broader definition.
But even under that definition, the government noted, Davis would fail to qualify as Vance’s supervisor.
Oral arguments were heard on Monday, and things didn’t look great for proponents of the broader definition.
At the outset, it looked like a case divided on ideological lines, with the liberals leaning towards the broader definition and the conservatives going towards the narrower one.
For those of you wondering if Chief Justice Roberts could be the swing vote he was in the Obamacare ruling, ask no longer: he was, perhaps, one of the most aggressive in pushing for the narrower definition.
One of the reasons for this seemed to be Roberts’ desire for a simple definition that would cut down on a lot of litigation and deep factual digging by federal judges (and the rest of the conservative Justices seemed to share that sentiment).
On the side of the liberals, the consensus seemed to be that the broader definition, despite its potential for creating more work for judges, was the better way to go.
One reason for this, as given by Justice Kagan, is that, under the narrower definition, someone could have another employee who oversees and directs all of his or her day-to-day work on the job, but isn’t considered a “supervisor,” “while the person upstairs in human resources that you may never see or even know would be considered your supervisor.”
Justice Kennedy – the presumed swing vote – was silent until the last few minutes, at which point he contended that the Seventh Circuit’s rule could be coupled “with an increased duty of care on the part of the employer to take necessary steps to prevent forbidden harassment.”
Kennedy continued: “In other words, you up the duty of care on the part of the employer generally.”
Unless one of the liberal Justices steps up and acts as a deal-maker in the same vein as Justice O’Connor or Justice Stevens, Kennedy’s suggestion will probably be how the Court comes down on this one (since it gives them what they want as judges: it lets them feel as though they were fair and made a compromise decision).
Unfortunately for the proponents of the broader definition, this “increased duty of care” for employers will only really matter on paper, and the Seventh Circuit’s definition will then be the effective one nationwide.
Anyhow, my prediction is a 5-4 affirm, split along ideological lines.
Whether 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 (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.
Lower Court’s Decision
The rule is limited to those who have the power to “hire, fire, demote, promote, transfer, or discipline” the victim.
AFFIRM 5-4 (Majority: Roberts, Alito, Kennedy, Scalia, and Thomas; Dissent: Ginsburg, Breyer, Sotomayor, and Kagan).
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