Next term, the Supreme Court may resolve a split among the circuits about who qualifies as a “supervisor” under Title VII, which prohibits employers from engaging in race-based discrimination. Vance v. Ball State University, Supreme Court Case No. 11-556 (certiorari materials available here on ScotusBlog).

As many readers of this blog will already know, employers can be held strictly liable for harassment inflicted by “supervisors.” But where only co-workers – not “supervisors” – are culpable, then the plaintiff must show that the employer has been negligent either in discovering or remedying the harassment. These standards emanate from the high court’s 1998 decisions in Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth.

Because the difference between strict liability and negligence is so meaningful when the rubber hits the road in court, a number of judges have grappled with the distinction between “supervisors” and “co-workers.” In the real world, that distinction is not always as clear-cut as it might seem. In Vance, for example, the plaintiff was the only African-American employee in the catering department at Ball State. She filed reports about her colleagues’ offensive conduct and obtained a right-to-sue letter from the EEOC. Ball State prevailed on summary judgment, though, and the Seventh Circuit affirmed. Although Vance asserted that one of her harassing colleagues had the authority to tell her what to do, and did not “clock-in” like Vance or other hourly employees, the Seventh Circuit agreed that this did not create a material dispute of fact about whether Vance was being harassed by a “supervisor,” saying:

Under Title VII, a supervisor is someone with power to directly affect the terms and conditions of the plaintiff’s employment. That authority primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee. We have not joined other circuits in holding that the authority to direct an employee’s daily activities establishes supervisory status under Title VII.

Vance v. Ball State University (7th Cir. 2011) (emphasis in original; internal citations omitted.)

When Vance appealed to the Supreme Court, she cast the issue as a split between the Second, Fourth, and Ninth Circuits (applying the broader view of “supervisor”) and the First, Seventh, and Eighth Circuits. She argued that the Seventh Circuit’s position seems at odds with the Supreme Court’s decision in Faragher, because one of the lifeguards who was deemed to be a “supervisor” in that case “plainly lacked” power over the harassment victim’s employment status. Opposing certiorari, Ball State contended that the high court had “previously denied a petition *** presenting the same asserted circuit split and the basic question presented here.” Apparently, the Supreme Court has decided that the time is ripe to try to bring some additional clarity to this recurring issue that has divided the circuits.