US Supreme Court to define ‘Supervisor’

By: Jason Park

The Supreme Court will provide further clarity regarding who exactly is considered a ‘supervisor’ under Title VII claims. On November 26, 2012, the Supreme Court tackled that question in Vance v. Ball State University.[1] In that case, Maetta Vance sued her employer, Ball State, claiming she had been the victim of racial discrimination at work.[2] However, the University rebutted Vance’s Title VII action by claiming that she lacks a cause of action under the Title VII due to the fact that the individuals she had brought the claims against were not ‘supervisors.’[3]

Employers have reason to fear Title VII suits because they are held strictly liable if a plaintiff can establish discrimination.[4] Burlington Industries, Inc. v. Ellerth and Farragher v. City of Boca Raton established the supervisor liability rule in discrimination cases. These cases established that the employer is liable for the supervisor’s conduct unless the employer can prove with the preponderance of the evidence that: (1) the employer took reasonable care to prevent and promptly remedy the abusive situation, and (2) that the plaintiff employee unreasonably failed to pursue available disciplinary measures or otherwise avoid the harassment.[5] Under these rulings, the outcome of employment harassment cases tipped in favor of plaintiffs who have a claim against their employer.[6] One consequence of these rulings is that employers are much more incentivized to settle even weak, questionable cases for fear of being found strictly liable.[7] However, others say that employers will more rigorously enforce anti-harassment policies in their workplace prospectively in order to avoid litigation.[8]

Employment and labor experts are paying close attention to the outcome of the Vance ruling since the Supreme Court’s clarification of the term ‘Supervisor’ will dramatically shift the consideration of those who are considering suits under Title VII claims against their employer.[9] Title VII suits cannot be brought against fellow employees – the lack of a supervisor or employer in the suit is fatal to the proceedings. In Vance, the plaintiff contended that the source racial harassment that she experienced at work came from her employers.[10] Ball State University contends that even if she experienced this purported harassment, the individuals responsible were her just employees.[11] If the University successfully proves this fact, Vance’s lawsuit would be defeated.[12] Vance claims that the individuals responsible were indeed her supervisors since they “[directed] and [oversaw] her daily work.”[13] Her employers rebut by saying true supervisory roles consist of those who have the authority to  “hire, fire, demote, promote, transfer, or discipline”.[14]

The confusion over who exactly can be considered a supervisor has largely risen due to changing workplace responsibilities and the rise of increased collaboration.[15] It used to be that workers punched the clock and hierarchical management structure was the norm.[16] Today, workers are increasingly collaborative and it is commonplace for authority in the workplace is spread amongst several people.[17]  Should the Supreme Court create a broader definition of who may be a supervisor, workers may find reduced responsibilities due to company’s strategically adapting their workplace hierarchy in order to avoid litigation.

[2] Lauren Weber, Who’s the Boss? High Court to Define Supervisor, WSJ (Nov. 26, 2012, 3:47 PM),

[3] Supra at 1.

[4] Steven M. Warshawsky, Ellerth and Faragher: Towards Strict Employer Liability Under Title VII for Supervisory Sexual Harassment, 2 U. Pa. J. Lab. & Emp. L. 303 (1999).

[5] Id. at 311.

[6] Id. at 317

[7] Id.

[8] Id.

[9] Weber, supra note 2.

[10] Supra note 1.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Weber, supra note 2.

[16] Id.

[17] Id.

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