I will wait to draft the detailed post once the Supreme Court has actually ruled, but for those who are following SCOTUS oral arguments, one of the big employment cases of this term was heard on Monday. Here is what you need to know about Vance v. Ball State:

The issue is whether the “supervisor” liability rule established by the Ellerth and Faragher cases applies to (1) harassment by those individuals the employer vests with authority to direct and oversee the employee’s daily work or (2) is limited to individuals who have the power to “hire, fire, demote, promote, transfer, or discipline” the employee.

  • By way of background, Ellerth and Faragher held that under Title VII, an employer is vicariously liable for severe or pervasive workplace harassment by a supervisor of the Why do we care how the term “supervisor” is defined?
  • It is all about Title VII liability.
  • Right now there is a circuit split as to the definition of supervisor.
  • If the definition of supervisor is expanded to include all individuals who direct and oversee daily work – there is going to be more liability for supervisors and the zone of vicarious liability expands.
  • If you get in the non-supervisor zone, an employer is only liable if it knew or should have known of the harassment and it failed to take appropriate action.
  • Whereas, if you get in the supervisor zone, an employer is liable unless the employer establishes that it exercised reasonable care to prevent harassment, and the employee failed to use available internal remedies.

How do I think this case will come out?

  • Similar to a baseball game, I like to side with my local team.  Therefore, I am going to side with the more expansive view held by the Ninth Circuit that (as well as the 2nd and 4th Circuits) that the “supervisor” liability rule applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work.