Late last month, the Supreme Court considered whether and when a co-worker can be deemed a supervisor for purposes of evaluating if the employer is strictly liable for that person’s harassment of another employee. As we reported in the July 9, 2012 edition of Labor & Employment Law Perspectives, the Supreme Court agreed to hear Vance v. Ball State University to address the critical question of who qualifies as a supervisor. The Justices debated the merits of upholding the clear standard applied by the 7th Circuit Appeals Court or of adopting the case-by-case standard advocated by the EEOC or a new hybrid standard suggested by Justice Kennedy. They also asked questions indicating that the Justices may believe that the facts in the case are not sufficient to decide the issue in the first place. To top it all off, Ball State’s counsel did not even argue in favor of the standard applied by the appellate court to rule in his client’s favor. The issue is critical to employers because they can be held strictly liable for harassment by a “supervisor.” If the alleged harasser is a co-worker, however, the employer will be liable for unlawful harassment of another employee if the employer was negligent either in discovering the harassment or in failing to investigate or craft an appropriate remedy to prevent it.
Ms. Vance worked in the catering department at Ball State University and complained that she was harassed by a co-worker whom she alleged was a supervisor. The co-worker allegedly hit Ms. Vance in the head, shouted at her, engaged in an altercation in the elevator, and engaged in other behavior over a period of years. Ms. Vance was apparently not an angel herself and the co-worker complained about Ms. Vance’s abusive language toward her. Ball State investigated and took appropriate action. Ms. Vance alleged that the co-worker was really her supervisor based only on a claim that the co-worker “could tell her what to do” and that the co-worker did not clock in as an hourly employee like others did.
Ms. Vance lost in the trial court and the federal appellate court also ruled in favor of Ball State, including by considering the alleged harasser’s conduct by the co-worker standard, not the supervisor standard. The appellate court ruled that a supervisor must have authority to “directly affect” the terms and conditions of employment which, in effect, meant that the supervisor had to be able to hire, fire, transfer, demote, promote, and/or impose discipline on the person complaining of harassment.
The employee argued before the Supreme Court that the definition of “supervisor” was too narrow in that the Supreme Court should adopt the EEOC’s view, accepted by other federal courts as well, that a supervisor is someone who merely controls another worker’s daily work activities, regardless of whether they can hire, fire, and take other more tangible action.
Some of the Justices’ questions seemed to endorse the value of the more clear “hire and fire” standard rather than to have to evaluate all facts in each case about whether and how one employee directs another employee’s daily activities. The Chief Justice noted that that standard might lead to a flood of litigation. Another Justice suggested that the clearer standard for determining whether someone was a supervisor could be adopted but that the Supreme Court could require that employers take greater action to protect employees from harassment.
It is not clear what the Court will do with this case. While the Chief Justice expressed interest in the more clear definition of a supervisor, the Supreme Court has issued many decisions concerning employment discrimination and harassment that already require a detailed factual assessment to evaluate complained of workplace conduct, such as whether conduct alleged to be harassment is severe or pervasive. There is no doubt that a decision between the “hire and fire” and the “controls daily work activities” standards will make a very substantial difference in the scope of an employer’s potential liability. Stay tuned.