On November 26, 2012, the U.S. Supreme Court heard oral arguments in Vance v. Ball State University, a case that may resolve a split between the federal appellate courts regarding the definition of a "supervisor" for purposes of employer liability under Title VII. The First, Seventh, and Eighth Circuits have held previously that to be a supervisor, an employee must have the power to hire, fire, demote, promote, transfer or discipline other employees. By contrast, the Second, Fourth, and Ninth Circuits have held that any employee with the authority to direct and oversee an alleged victim's daily work may be considered a supervisor for purposes of Title VII. The distinction is significant because if an alleged harasser is a supervisor, the employer generally will be held vicariously liable for the supervisor's conduct unless the employer can prove that it had an effective anti-harassment policy in place and the employee failed to utilize the employer's preventative or corrective measures. The Supreme Court is expected to issue its decision by next June.
The Vance case is an important reminder that employers should work to ensure that employees who may be considered supervisors understand the breadth of potential employer liability under Title VII.