Supreme Court decision will affect employment law, retaliatory discharge

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal-injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

Below is a brief discussion on the case of Vance v Ball State University, et al., which is before the U.S. Supreme Court next term:

In the case of Vance, the court will settle a dispute as to who can be considered a workplace supervisor for the purposes of a federal job-discrimination lawsuit. It will be decided if the Faragher and Ellerth liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or, as the First, Seventh and Eighth circuits have held (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer or discipline” their victim.

The Faragher and Ellerth rules provide that an employer is vicariously liable for severe or pervasive workplace harassment by a supervisor of the victim. If the harasser was the victim’s co-employee, however, the employer is not liable absent proof of negligence. Simply put, if the harasser is a supervisor, liability is imputed to the employer; if the harasser is a non-supervisory co-worker, the victim must prove that the employer knew or should have known of the harassment for liability to attach.

In the present case, Maetta Vance sued the employer for violation of Title VII alleging hostile work environment and retaliation among other claims. Vance alleges that a co-worker in the Muncie, Ind., university’s banquet and catering department (described as a salaried employee who functioned as a supervisor) slapped her, threatened her and referred to her using racial epithets. The trial court granted the employer’s motion for summary judgment. It was held by the 7th U.S. Circuit Court of Appeals that actionable harassment by a person whom the employer deemed a “supervisor” and who had the authority to direct and oversee the victim’s daily work could not give rise to vicarious liability because the harasser did not also have the power to take formal employment actions against her.

In her Supreme Court appeal, Vance says the Chicago court’s ruling conflicts with standards used by other federal appeals courts and by the Equal Employment Opportunity Commission (EEOC), which say that a supervisor is someone with authority to direct an employee’s daily work activities. The Obama administration filed a brief agreeing with Vance’s argument that the 7th Circuit’s legal definition of supervisor conflicts with standards used by the EEOC and some other courts in job-discrimination cases. The Justice Department, however, urged the court to deny Vance’s appeal, saying the co-worker in her specific case wouldn’t qualify as a supervisory employee under even the EEOC’s description.

This case is not only important for potential clients but is also something that supervisors in law firms, or any other workplace, will need to be cognizant of. While it is unlikely that this case will attract the eyes of the world as the court’s decision with respect to the Affordable Care Act, any decision handed down will have implications in the area of employment law and retaliatory discharge.


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