July 6, 2012 / Law Alert

Employment law perspectives: Supreme Court grants certiorari on scope of supervisor liability under Title VII

On June 25, 2012, the United States Supreme Court granted certiorari in Vance v. Ball State University (No. 11-556), and will hear arguments in the Fall of 2012. This is an appeal from the 7th Circuit decision in Vance v. Ball State University, 646 F.3d 461 (7th Cir. 2011), and the Court’s decision on the scope of supervisor liability under Title VII should resolve a significant Circuit split and eliminate the wide disparity in determining who is a supervisor for the purposes of Title VII liability.

In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the Supreme Court held that under Title VII, an employer is vicariously liable for severe or pervasive workplace harassment by a supervisor of the victim. However, if the harasser was the victim’s co-employee, the employer is not liable absent proof of negligence on the part of the employer. The 2nd, 4th and 9th Circuits have interpreted the Faragher and Ellerth “supervisor” liability rule to apply to harassment by those to whom the employer gives the authority to direct and oversee the victim’s daily work. In Vance, the 7th Circuit held that actionable harassment by a person whom the employer deemed a “supervisor” and who had the authority to direct and oversee the victim’s daily work could not give rise to vicarious liability because the harasser did not also have the power to take formal employment actions against the employee. The 7th Circuit joined the 1st and 8th Circuits, which have held that supervisor liability is limited to those harassers who have the power to hire, fire, demote, promote, transfer or discipline the victim employee.