Supreme Court to Clarify What Constitutes a Supervisor in Harassment Cases

By Judy Greenwald

Jun. 27, 2012

The U.S. Supreme Court has agreed to decide whether employers are liable for their supervisors’ harassment only when the supervisor oversees the worker, or whether the supervisor must have the authority to hire and fire the employee.

The case, Maetta Vance vs. Ball State University et al., concerns whether the Muncie, Indiana-based university could be held liable for the alleged racial harassment and intimidation experienced by Vance, the sole African-American employee in its banquet and catering department.

Vance accused supervisors and co-workers of harassment. A lower court dismissed the case and the 7th U.S. Circuit Court of Appeals upheld that ruling in June 2011 in part on the grounds that Vance had not established a basis for employer liability on the hostile work environment claim.

The Supreme Court, which accepted the case June 25, has ruled on the issue previously under Title VII of the Civil Rights Act of 1964. In 1998 decisions in Beth Ann Faragher vs. City of Boca Raton and Burlington Industries Inc. vs. Kimberly Ellerth, the high court held that an employer is vicariously liable for severe or pervasive workplace harassment by a victim’s supervisor.

However, lower courts subsequently split on how to define a supervisor, Vance said in the petition seeking Supreme Court review. The 1st, 7th and 8th circuit appeals courts have held that supervisors are those with power to “hire, fire, demote, promote, transfer or discipline” an employee. However, the 2nd, 4th and 9th circuit appeals courts have defined supervisors as those who only direct and oversee the alleged victim’s daily work.

When the Supreme Court does rule on the issue, it will potentially impact a “great number of employment discrimination lawsuits filed countrywide,” said Gerald L. Maatman Jr., a partner with law firm Seyfarth Shaw L.L.P. in Chicago.

“It’s going to draw a line as to what exactly is a supervisor in terms of supervisory liability rules, which is “a question that has been left open since 1998 in the Faragher and Ellerth cases,” he said, noting that the courts have struggled to determine the line between supervisor and co-worker.

Maatman said he believes there is a good chance the Supreme Court will agree with the 7th Circuit, which ruled that a supervisor is someone who has the power to hire and fire. That would be “consistent with the modern realities of the modern workplace,” where someone who has this authority “tends to be looked at as a supervisor,” he said.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. To comment, email

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Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management.

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