On November 26th, the U.S. Supreme Court heard argument in a case where the main question presented was who is a "supervisor" under the employment discrimination laws. (Vance v. Ball State University et al., No. 11-556). The Court agreed to hear the case to resolve the conflict between the appellate courts that arose following the Court's 1998 decisions, which established that an employer can be vicariously liable for severe or pervasive workplace harassment by a supervisor. In the Seventh Circuit Court of Appeals, as well as in the First and Eighth Circuits, a supervisor is someone with authority over tangible employment decisions, such as hiring, firing, promoting and disciplining employees. The Second, Fourth and Ninth Circuits apply a more liberal definition and have found liability for harassment when the employer vests an employee with authority to direct and oversee the victim's daily work.

In this case, summary judgment was granted in favor of the employer, Ball State University, resulting in the dismissal of Vance's claims of hostile work environment (racial harassment) and retaliation. Vance, an African-American, held various positions in the dining services department at the University. She received promotions and raises over the years. Beginning in 2001, she alleged that co-workers harassed her by repeatedly using racial slurs and threatening language. Around that time, Bill Kimes became Vance's supervisor. According to Vance, Kimes gave her the "cold shoulder," made her feel unwelcome and treated other employees to lunch when she was not around.

Vance filed several complaints, which the University investigated. In some cases, Vance's co-workers were disciplined as a result of her complaints. In 2006, Vance complained that her supervisor, Kimes, was making her work through her breaks. After filing two charges of discrimination with the EEOC, Vance filed suit in October 2006 alleging that three supervisors, Kimes, Davis and Adkins, harassed her based on race. Under Title VII, which prohibits discrimination in employment, employers are "strictly liable" for harassment inflicted by supervisors, but can assert an affirmative defense when the harassment does not result in tangible employment actions. In the case of harassment by co-workers that creates a hostile work environment, the employee must show that the employer was negligent in discovering or remedying the harassment.

In this case, the Seventh Circuit found: 1) Davis was not a supervisor because she did not have the power to affect the terms and conditions of Vance's employment; 2) Vance failed to prove that Kimes' conduct was motivated by Vance's race; and 3) Adkins' alleged staring and "mean-mugging" fell short of the kind of conduct that would support a hostile work environment claim. The Court refused to join the other circuits in holding that authority to direct an employee's daily activities establishes supervisory status under Title VII.

According to one commentator who observed the oral argument before the Supreme Court, Vance v. Ball State University was probably not the right vehicle for the Court to address the issues presented. (Lyle Denniston, Argument recap: Salvaging lost cause? SCOTUSBLOG, Nov. 26, 2012.) The arguments made by Vance's attorney prompted Chief Justice John G. Roberts, Jr. to ask whether an employee would qualify as a supervisor if that employee had the power to decide what background music would play throughout the day, and use the threat to play music a co-worker did not like, country music or maybe hard rock in order to coerce that co-worker to go on a date. According to commentator Lyle Denniston, it became apparent that Justice Antonin Scalia was not troubled by the Seventh Circuit's approach. If the Supreme Court adopts the broader definition of supervisor, employers could find themselves liable for discrimination in situations that involve an employee who has no authority to act or prevent the discriminatory or harassing conduct.