On September 5, 2012, NELA, joined by AARP, filed an amicus brief supporting Petitioner Maetta Vance in Vance v. Ball State University, currently pending in the United States Supreme Court. Our brief was drafted by Professor Michael L. Foreman of the Penn State University Dickinson School of Law, with support from his students in the Civil Rights Appellate Clinic. The issue in this case concerns the appropriate definition of “supervisor” under Title VII.
Ms. Vance was the only African-American employee in her department, which provided banquet and catering services to the Ball State University campus community. She alleged numerous instances of fairly egregious, racially-motivated conduct in support of her hostile work environment and retaliation claims. Some of this conduct was engaged in by employees who arguably directed at least some of her day-to-day work activities. The Seventh Circuit Court of Appeals, in an opinion by Judge Diane Wood, affirmed summary judgment in favor of the defendant. In so doing, Judge Wood held that the definition of supervisor is limited to those who possess the power to “hire, fire, demote, promote, transfer, or discipline an employee.”
By contrast, the Equal Employment Opportunity Commission (EEOC) developed guidance in response to the earlier Supreme Court decisions in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton embracing a broader definition of “supervisor” that included those with the authority to direct the daily activities of other employees. NELA’s brief argues forcefully that the standard contained in the EEOC guidance is consistent not only with the decision in Faragher and Ellerth, but also with the more recent Supreme Court decisions in Burlington Northern & Santa Fe Ry. v. White and Staub v. Proctor Hospital.
The brief discusses how an unduly restrictive definition of who qualifies as a “supervisor,” and therefore whose behavior automatically imputes liability to the employer, would discourage employers from implementing internal anti-harassment policies and grievance procedures that could help deter harassment. The goal of deterring harassment was central to the Supreme Court’s reasoning in Faragher and Ellerth, and adopting the EEOC’s definition would provide employers with the incentive to develop procedures that could deter those who would be most likely to engage in harassment.
Thanks to Professor Eric Schnapper (University of Washington) and Margaret A. Harris (Butler & Harris in Houston, TX), each of whom provided Professor Foreman with valuable feedback during the drafting process and reviewed the brief on NELA’s behalf.