The United States Supreme Court recently held oral arguments in Vance v. Ball State University, a case which has the potential to drastically expand who qualifies as a “supervisor” for purposes of Title VII harassment suits. This is a critical question for employers because supervisor harassment renders an employer automatically liable unless it can prove it exercised reasonable care to prevent and correct such harassment and that the victim unreasonably failed to engage the employer’s protective measures. In contrast, co-worker harassment renders an employer liable only if the employee can prove that the employer was negligent in discovering or remedying the harassment.

The Vance case offers the Supreme Court the opportunity to resolve a circuit-split regarding the important “supervisor” definition. In some circuits, “supervisor” includes any individual possessing the authority to direct and oversee the harassment victim’s daily work, or any person who the victim subjectively regards as a supervisor. By contrast, the Seventh Circuit in Vance limited the “supervisor” definition to include only individuals with power over the formal status of the harassment victim; i.e., the power to hire, fire, demote, promote, transfer, or discipline.  Oral argument offered little guidance on how the high court will resolve the split, although the Justices did express some concern with a definition that focuses too heavily upon the victim’s subjective belief, noting that could include someone with authority to control something as trivial as background music in the office.

Should the Court adopt a broad definition of “supervisor,” more employees could file harassment disputes, and such claims would be more costly to defend because a more expansive definition of “supervisor” would demand closer analysis of the specific facts of each case. These concerns are profound for industries lacking clearly defined supervisory roles, such as the university defendant in the Vance case. Employers with large work forces involving multi-layered management could also face new challenges, as employees could assert supervisory harassment claims against a harasser holding a managerial position in an entirely different department based on the employee’s belief that the harasser had sufficient influence over personnel matters within the company to be regarded as a supervisor.     

The Supreme Court’s decision is expected early next year; we will provide further updates and guidance for employers at that time.