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November 2012 Volume XI No. 9 Taking Care of Business About Us Comments Unsubscribe Disclaimer Employment At-Will Policies That Do Not Clarify Their Scope Or Limitations Risk Violating Federal Law Prohibiting The Exercise Of The Right To Organize And Ba

kkerr.jpgThe Supreme Court recently heard oral argument on a case which is expected to address a split in the Circuit courts of appeal over how to define a supervisor in cases of alleged workplace harassment. In Vance v. Ball State University, the Seventh Circuit adopted a definition of supervisor as a person who has authority to hire, fire, demote or discipline an employee. This made three Circuits which have adopted this definition. Three other Circuits have adopted a definition which defines a supervisor as a person with day-to-day oversight over the harassed employee which is similar to the standard proposed by the Equal Employment Opportunity Commission.

This definition is important because an employer's liability for harassment is significantly impacted by whether the harassment results from the conduct of a supervisor or is based on the acts of a co-employee. Applying general principles of agency law, the Supreme Court has held that an employer is generally liable for the acts of a supervisor. So, where a supervisor harasses an employee, the employer is generally liable for the supervisor's acts. In contrast, where an employee harasses a fellow employee, the employer is liable only if the employer was negligent in allowing the harassment. This will generally require evidence that the employee complained of the harassment and that the employer's response was negligent.

In Ball State University, an African-American employee complained of racial harassment and physical abuse at work. She asserted that the harassment came from a white co-worker who she viewed as a supervisor and that the general manager did not protect her and treated other workers more favorably. At oral argument the plaintiff's counsel argued that the supervisor should be defined as a person who can instill fear into an employee or control their work location. In a somewhat unusual twist, Ball State's counsel did not ask the Supreme Court to affirm the Seventh Circuit. Instead, he argued that the Supreme Court should adopt a definition of supervisor as a person whose control over the employee's work meaningfully assisted in the harassment. The deputy solicitor general argued on behalf of the federal government that the Supreme Court should adopt the EEOC definition of supervisor.

Several justices expressed frustration with the absence of any party supporting the Seventh Circuit's definition. As all parties were in agreement that the 7th Circuit (and other circuits' similar definition of supervisor) was too restrictive, some justices seemed concerned about the propriety of a ruling defining supervisor when there was no party arguing for all of the definitions in Court. Justice Alito suggested that the matter be remanded.

The matter is now before the Court and its ruling could either substantially increase or decrease an employer's exposure to liability for workplace harassment.

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