By: Seth Nadel
A woman suing her employer for harassment under the Civil Rights Act was recently denied relief by the United States Supreme Court in Vance v. Ball State University, based on the legal conclusion that her alleged harasser was not technically her “supervisor.” Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” When the harasser is a co-worker, an employer is liable only if it was negligent in controlling working conditions. In cases of harassment by a supervisor, however, the employer is held strictly liable. The majority concluded that a “supervisor” is one who has the power to hire, fire, demote, promote, transfer or discipline an employee and, since the purported harasser did not have those powers, the University that employed the plaintiff was entitled to summary judgment.
Naturally, the decision in Vance has provoked strong opinions on both sides of the issue. Supporters of the decision maintain that it is a positive development in that, with the aid of a bright-line rule, it should now be relatively easy to determine whether a harasser is a supervisor and which burden of proof should fall on the employer. The ease of this determination, they maintain, will make it easier for parties to focus on the merits and preparation of their cases.
Opponents, on the other hand, argue that the ruling gives employers an incentive to create jobs which have supervisory elements, but expressly deny the power to hire and fire in order to escape liability for harassment by a supervisor under the Civil Rights Act. They implore Congress to correct the ruling through legislation which clearly enumerates the definition of a “supervisor,” based on the existed definition employed by the Equal Employment Opportunity Commission (EEOC) which is broader and more favorable to employees. According to the EEOC, the term “supervisor” encompasses those who have the power to affect an employee’s daily work activities, in addition to those who can affect a change in employment status. 
This sentiment was echoed by the dissent in Vance. The dissent cited a litany of past cases in which the narrow definition of “supervisor” used by the majority would have denied relief in otherwise meritorious claims. The dissent further argues that, under the ruling, employees who control day-to-day schedules and assignments are improperly removed from the scope of being a technical supervisor simply because they are not empowered to take tangible employment actions.
Anecdotally, inquiries made to several acquaintances as to whether they had the power to hire and fire yielded only one unequivocal answer (an electronic editor, who answered in the negative). An assistant store manager at Rite-Aid said that he did, indeed, have the power to hire and fire, but only when the duty was directly delegated to him by his own superiors. A mental health worker in a non-profit organization said that hiring, firing and disciplinary action was done almost exclusively by committees, though she did retain supervisory powers over some other employees. Additionally, a New York City public school teacher/administrator said that only the principal had the ultimate power to fire and only after “years of putting in paperwork” and dealing with the teacher’s union.
In sum, it can be legitimately argued that the United States Supreme Court’s determination as to what constitutes a “supervisor” for the purposes of Title VII of the Civil Rights Act poses more questions than it does answers. In its attempt to draw a bright-line rule, the Supreme Court may have perhaps succeeded only in obfuscating the issue even further.
 Vance v. Ball State Univ., 133 S. Ct. 2434 (2013).
 42 U.S.C. § 2000e–2(a)(1).
 Vance, 133 S. Ct. at 2439.
 Judy Greenwald, Supreme Court rulings raise standards for proving discrimination at work, Business Insurance (June 30, 2013, 6:00 AM) http://www.businessinsurance.com/article/20130630/NEWS07/306309969&template=smartphoneart.
 Bryce Covert, How Congress Can Undo The Supreme Court’s Attack on Workers’ Rights, Think Progress (June 27, 2013, 3:30 PM). http://thinkprogress.org/economy/2013/06/27/2228701/supreme-court-workers-rights/.
 Mack v. Otis Elevator Co., 326 F.3d 116, 127 (2d Cir. 2003) abrogated by Vance v. Ball State Univ., 133 S. Ct. 2434, 186 L. Ed. 2d 565 (U.S. 2013).
 The majority refused to follow the EEOC guidelines and dismissed their broader definition as “a study in ambiguity.” Vance, 133 S. Ct. at 2449.
 Vance, 133 S. Ct at 2455.
 Id. at 2459-2460.
 Id. at 2455.