This summer, the Supreme Court will issue a decision and define the term “supervisor.” The Court recently heard oral arguments in the case of Vance v. Ball State University, 646. F.3d 461 (7th Cir. 2011).
The key issue is whether the definition of a “supervisor” pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, is limited to individuals that can hire, fire, demote, transfer, or discipline another employee. The definition is important because an employer is “strictly liable” for the conduct of a “supervisor.” However, for a “co-worker’s” conduct, an employee must establish that the employer was negligent in remedying the harassment. Sometimes these lines become blurred as an individual might not have the power to “fire” another employee, but can direct the other employee’s daily work.
In Vance, the Seventh Circuit Appellate Court in Illinois adopted the narrow definition of “supervisor” to include only individuals with “direct authority” and indicated that “[w]e have not joined other circuits in holding that the authority to direct an employee’s daily activities establishes supervisory status.” Vance, 646 F.3d at 470 (citations omitted).
During the Supreme Court’s oral arguments, Justice Kagan appeared to support a flexible standard and said, “Professors don’t have the ability to fire secretaries, but professors do have the ability to make secretarial lives living hells.” While the more conservative Justices seemed to imply that a flexible definition would include too many people: a senior employee that picks the music in an office might be a “supervisor” under the approach.
Vance will be an important case to follow for employers, especially those in Illinois. If the Supreme Court adopts the more flexible standard, employers will need to have greater safeguards in place to prevent discrimination before it occurs. The flexible approach will increase employer liability as more individuals will meet the test of “supervisor.”