On June 25, 2012, the United States Supreme Court agreed to hear
the appeal in the case of Vance v. Ball State University, Case No.
11-556. The issue in Vance is whether an employee who directs
the work of other employees, but who does not have the authority of
a traditional supervisor, can still be considered a
"supervisor" under Title VII of the Civil Rights of 1964.
There is currently a split among the federal Circuit Courts of
Appeals on the issue of whether an employee who has the authority
to direct the work of other employees is a supervisor under Title
VII, even if he or she does not have the authority to make or
suggest "tangible" employment actions such as to hire,
fire, demote, promote, transfer, or discipline other employees. The
Seventh Circuit Court of Appeals in Vance held that such an
employee is not a supervisor, as have the First and Eighth
Circuits. The Second, Fourth, and Ninth Circuits have held that
supervisory status under Title VII is established if an employee
merely has the authority to direct and oversee the work of others,
like a lead person would. The EEOC, not surprisingly, shares the
latter view. See Vicarious Employer Liability for Unlawful
Harassment by Supervisors.
The resolution of this issue will be important to all employers
who are covered by Title VII and similar anti-discrimination laws.
If an alleged harasser is a supervisor, then the employer is
considered liable for the harasser's illegal actions. In that
situation, the employer's only defense would be that it had
effective non-harassment policies and procedures in place, but the
harassed employee unreasonably failed to follow them to stop the
harassment. However, if the alleged harasser is a co-worker and not
a supervisor under Title VII, then the employer can be found liable
only for the co-worker's harassment if it failed to take
reasonable steps to stop the harassment. We will keep you posted as
to future developments on this important issue.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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