Looking ahead to OT 2012: Who is a supervisor?

By Anne King

Next term, in Vance v. Ball State University, the Supreme Court will consider the question of who qualifies as a supervisor to hold an employer liabile for workplace harassment under Title VII.

This question matters quite a lot because, under the Faragher/Ellerth doctrine (named for Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, decided in 1998), employers are vicariously liable for harassment by a supervisor. But, in the case of harassment by a co-worker, the victim must show negligence by the employer. (By the way, there’s a third test when the hostile work environment is connected to an adverse employment action.)

The exact question before the Court is whether Faragher/Ellerth “applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work” or “is limited to those harassers who have the power to ‘hire, fire, demote, promote, transfer, or discipline’ their victim.”

There’s a fairly clear-cut split among the circuits on this issue. The Second, Fourth, and Ninth Circuit adopted the “direct and oversee” test, while the First, Seventh, and Eighth Circuits held that “power to hire, fire, discipline, etc.” characterizes a supervisor. (In Vance, the Seventh Circuit followed circuit precedent dating back to 1998, just after the Faragher and Ellerth decisions.)

I have a few initial thoughts on the Court’s possible direction in Vance – and the first is that the Court’s grant of cert itself may offer a clue to the outcome. It’s often said that the Court grants cert in order to reverse (in fact, it reversed just under two thirdsof merits cases in OT2011).   But it’s difficult to assess whether that’s the case here, at least without knowing if the Court recently entertained petitions from circuits that adopted the “direct and oversee” test.

Second, the Court’s recent employment decisions may provide insight. In recent years the Court’s record on employment issues has been mixed, with some victories for employers (Wal-Mart) and some good decisions for employees, especially in the area of retaliation (CrawfordKastenThompson).

The most relevant recent case is probably Staub v. Proctor Hospital, decided in 2011.  In Staub, the Court considered the scope of employer liability for discrimination when the person who made an adverse employment decision is influenced by another person who has discriminatory animus against the employee (this is called the “cat’s paw doctrine”).  Staub’s supervisor exhibited clear animus at his military status – but a human resources manager made the actual decision to terminate him.  The Court ruled for Staub, holding that the employer could be held liable for discriminatory termination because human resources based its decision on a complaint by Staub’s supervisor.  Importantly for Vance, the decision acknowledged that, in the contemporary workplace, formal decisionmaking about employment status is often separate from direction of day to day activities.

Finally, given the circuit split, the court may simply adopt one of the two rules.  But one can imagine a decision in which the Court rejects the Seventh Circuit’s “power to hire, fire, discipline” rule and adopts a more limited version of the “direct and oversee” rule.


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