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Hinging on Supervisor Definition, Supreme Court Reviews Work Harassment Case

November 26, 2012 at 12:00 AM EDT
The Supreme Court heard arguments in a case about work harassment that depends on defining who is considered a supervisor and who is considered a co-worker. Jeffrey Brown talks to The National Law Journal's Marcia Coyle about the case and how the ruling will likely affect how liabilities are measured by employers.

JEFFREY BROWN: Next tonight: Who qualifies as a supervisor in the workplace? That might seem obvious most of the time, but as a legal matter, courts have come to different conclusions, some saying it’s confined to someone with powers such as hiring and firing, others deciding on a broader definition.

The Supreme Court looked at the issue today in a case where a woman claims a co-worker harassed her because of her race.

Marcia Coyle of “The National Law Journal” was in the courtroom to hear the arguments and is here with us tonight.

Welcome back, Marcia.

MARCIA COYLE: Thank you, Jeff.

JEFFREY BROWN: So, first, the facts of the case, Vance v. BallStateUniversity.

MARCIA COYLE, “The National Law Journal”: Right.

Well, Jeff, first of all, this case involves Title VII of the Civil Rights Act, which, as you know, is our nation’s major job anti-discrimination law. And under that law, an employer can be held liable if a supervisor harasses an employee. And that’s because the supervisor is imbued with the employer’s authority.

JEFFREY BROWN: Key word being supervisor, right?


But an employer also can be held liable if a non-supervisor employee harasses another employee.

But it’s tougher to prove. You have to show the employer knew or should have known about the harassment and failed to act.

Maetta Vance, brought this lawsuit against BallStateUniversity. She’s an African-American woman working in the dining services division of the university, claimed she was harassed by a white co-worker, was slapped on the head, blocked at the elevator, racial epithets were used such as “Sambo” and “Buckwheat” in her presence.

She complained, and, finally, she brought her lawsuit against the university. She lost below in the lower courts. The lower court, federal appellate court said that this co-worker wasn’t a supervisor, and took the definition that is probably the most restrictive, that is, the supervisor has to be somebody who can make a tangible employment decision, such as hiring and firing.

JEFFREY BROWN: All right, so, today, it made its way to the Supreme Court, and her argument — her lawyers are arguing for something broader than that.

MARCIA COYLE: Absolutely.

In fact, there was an interesting argument because, not only her lawyer, but the lawyer for the federal government and the lawyer for the university, didn’t support the lower federal court’s definition of supervisor.

JEFFREY BROWN: Even though they had won down there?

MARCIA COYLE: Yes, even though.


MARCIA COYLE: But there were nuances here.

First of all, Miss Vance’s lawyer believes the correct approach or standard is to say that anyone who controls your daily activities is a supervisor for liability purposes.

And the federal government argued, Deputy Solicitor General Sri Srinivasan argued that the court should accept the EEOC, the Equal Employment Opportunity Commission’s approach, which is either/or. You either do make tangible employment decisions or you control an employee’s daily activities.

The university argued, basically, we will accept the broader definition, but there has to be some meaningful limits on it. The other employee — the harassing employee cannot be somebody who occasionally controls your activities. It has to be a meaningful control.

JEFFREY BROWN: So, on the side of — in this case, it’s university is the employer.


JEFFREY BROWN: The implications for — wider implications for other companies? They would be arguing against the broader definition. Right?

MARCIA COYLE: Oh, absolutely. The U.S. Chamber of Commerce and a number of…

JEFFREY BROWN: It’s a big deal for them, right?

MARCIA COYLE: It is. It’s all about money liability.

If the court accepts the stricter definition, the lawyers and organizations that represent workers fear that employers will start moving categories of workers into the supervisor category in order to avoid liability, whereas employers are concerned with a broader definition that they will have greater potential liability.

JEFFREY BROWN: And did the justices tip their hands or any interesting questions that…

MARCIA COYLE: Well, I didn’t see a lot of support for the strict definition, although Chief Justice Roberts pointed out that there is an advantage to that, and that is you know — clearly, it’s a bright-line rule — what the analysis is going to be.

He worried that a broader definition creates sort of a continuum of employees who fall on that continuum as to, you know, individual facts of each case are going to matter, and courts are going to be drawn into endless debates as to who is a supervisor.

JEFFREY BROWN: All right, we will await that decision.

In the meantime, the court also took another action today, not arguments. But they sent back to the lower courts a case that goes — concerns the Affordable Care Act, of course, the big event from last session.



MARCIA COYLE: Yes. Well, LibertyUniversity was one of four cases last term that challenged the Affordable Care Act.

Today, the court sent LibertyUniversity’s case back to the Fourth Circuit Court of Appeals because LibertyUniversity had raised other claims that the Supreme Court didn’t decide last term.

LibertyUniversity wants to challenge the individual mandate to purchase insurance and the law’s employer mandate to provide insurance on religious grounds.

LibertyUniversity, as you know, was founded by the Reverend Jerry Falwell.


MARCIA COYLE: And it claims that the Affordable Care Act, those two mandates in particular, violate the free expression of religion.

JEFFREY BROWN: So, the court is saying that was not something we took up last time, send it back to the lower courts. Let them hear it.

MARCIA COYLE: Let them rule, right.

The lower court was the only federal appellate court that refused to let Liberty University’s lawsuit go forward at all because of that old anti-injunction act. That was the only court that found that that law blocked challenges to the Affordable Care Act.

And the Supreme Court in its final health care ruling said that that act didn’t apply.

JEFFREY BROWN: But, briefly, so now there’s a chance it will come back to the Supreme Court eventually, huh?

MARCIA COYLE: I will bet you dollars to donuts…



MARCIA COYLE: … if LibertyUniversity loses, that LibertyUniversity will be back at the Supreme Court probably next year.

JEFFREY BROWN: All right, I’m not taking a bet against you.



JEFFREY BROWN: But we will talk about it if it happens, of course.

MARCIA COYLE: All right.

JEFFREY BROWN: Marcia Coyle, thanks again.

MARCIA COYLE: My pleasure, Jeff.