Oral Argument in Vance v. Ball State University Takes an Unexpected Turn -

Late last month the U.S. Supreme Court heard oral argument in Vance v. Ball State University, No. 11-556. The issue that Vance is expected to decide is how much authority over other workers an employee must be given to be considered a “supervisor” under Title VII. While the question may appear to be of academic interest, how it is answered actually will have great practical importance for employers given the lack of a consistent answer from the courts.

Some Background -

The question of who is considered a supervisor arises consistently under Title VII and other employment laws in deciding whether an employer should be held responsible for the unlawful act by one employee against another. In other words, whether the employer is liable for an employee’s harassment of or other discrimination against another employee can depend on whether the alleged wrongdoer should be considered a supervisor. The concept of employer responsibility for the wrongdoing of an employee is referred to by lawyers and the courts as “vicarious liability.” Not surprisingly, it often is a key issue in harassment cases. Indeed, whether and in what circumstances to hold an employer liable for sexual harassment was central to the Supreme Court’s trail blazing decisions in the sexual harassment area. First, in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), where the Court held that both quid pro quo and hostile working environment sexual harassment claims can be brought under Title VII, it directed that traditional “agency” principles, which are used in most other contexts to determine employer liability for the acts of employees, also be used to determine employer liability in Title VII harassment cases.

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