Existing workplace harassment precedent differentiates between harassment by "supervisors" and co-workers. Employers are subject to vicarious liability, pending the Faragher-Ellerth defense, for harassment by supervisors. Whereas plaintiffs must establish negligence on the part of the employer if the harasser is merely a co-worker.
Vance v. Ball State Univ. will hopefully define who counts as a "supervisor" for employment harassment and hostile work environment claims. The Seventh Circuit held that the harasser can not be a supervisor unless he or she has the power to "hire, fire, demote, promote, transfer, or discipline" the victim. The most noteworthy part of yesterday's argument? Nobody endorsed this test (both parties and the United States argued against it). This seemed to bother Justice Scalia, who I'm guessing will vote in favor of the Seventh Circuit test.
The employee's counsel even went so far as to argue that the parties agreed on the applicable legal standard, which he phrased as:
[T]hose harassers whose employer-conferred authority over their victims enables or materially augments the harassment should count as supervisors.This led to a number of sometimes silly hypotheticals, which I think were meant to demonstrate the problem with such a wishy-washy test. What if the harasser had the power to play country music at work all day? What if it was hard rock? What if the harasser could subject the victim to a cold work environment? Or make the victim chop onions? Or clean toilets? Justices Alito, Roberts and Scalia all hinted at the problem with having to decide the "materially augments" factor on a case-by-case basis, leading me to believe they will come down in favor of the bright line rule from the Seventh Circuit.
The employer argued that the employee in this case would not meet any of the standards - a point they made in their Brief while arguing that this is a poor case for deciding which "supervisor" test to use. And that's a concern in this case. The employee's case is pretty weak, and the Justices may agree that the supervisor test is not determinative and therefore punt on the issue. I hope that doesn't happen because there is a circuit split on this issue and I want an answer.
There was also a funny little skirmish involving Scalia and Ginsburg with regard to Skidmore deference and administrative deference generally (pp. 18-19). So, the opinions could be split along admin-law loyalties, with some Justices deferring to the EEOC's test (focusing on authority to direct day-to-day work activities).
Frankly, I think this case is a toss up. Did Justice Kennedy tip his hand? Not exactly. In fact, he only made one comment and it was to bring up his own standard that would use the Seventh Circuit bright line rule coupled with "an increased duty of care on the part of the employer to take necessary steps to prevent forbidden harassment."
My prediction: 5-4 for the bright line rule, split conservative bloc plus Kennedy in the majority with a concurring opinion by Justice Kennedy advocating the "increased duty of care."
Image: Work of federal government on Supreme Court website.