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The Supreme Court heard arguments today in a case that asks, when it comes to harassment in the workplace, who is a supervisor? The definition is important. As NPR's Nina Totenberg reports, employers are automatically liable for damages, in most cases, where a supervisor harasses a subordinate.
NINA TOTENBERG, BYLINE: At the center of today's case were allegations of racial harassment brought by Maetta Vance, an African-American kitchen assistant at Ball State University in Indiana. The Federal Appeals court for the 7th Circuit in the Midwest threw the case out because the alleged harasser did not have the power to hire, fire or discipline anyone. That definition of a supervisor is narrower than the definition used by most appeals courts or by the EEOC, the federal agency charged with enforcing employment discrimination laws. And so Vance appealed to the Supreme Court, represented by University of Virginia law professor Dan Ortiz.
DAN ORTIZ: There are lots of situations where people have power over other employees when they don't have the power to fire them.
TOTENBERG: Ball State, represented by lawyer Gregory Garre, maintains that Vance's definition is too expansive, so broad that...
GREGORY GARRE: Thousands, if not millions of workers across the country would automatically being deemed supervisors, when in practice, no one would have considered those people supervisors.
TOTENBERG: Inside the court today, Vance's lawyer was first up, telling the court that the proper definition of a supervisor is someone who directs another employee's daily activities regardless of the power to hire and fire. Chief Justice Roberts interjected: Suppose five people work together, and the employer has a rule that the senior employee gets to pick the music that's going to play all day. And the senior employee knows that one of the other employees doesn't like country music, so he tells her, if you don't date me, it's going to be country music all day long. So does that make the senior employee the supervisor?
Lawyer Ortiz replied that action might not qualify as severe enough. Justice Scalia: OK, let's say it's hard rock instead. Answer: I don't think from an objective reasonable employee's standpoint, the music would impair performance in the workplace. But each case has to be judged individually. Chief Justice Roberts: Exactly. And I would have thought the benefit of the 7th Circuit's test is that it establishes a clear rule and avoids a case-by-case analysis.
Justice Alito: What was the most unpleasant thing the alleged harasser could have assigned Vance to do? Chopping onions all day? Answer: Yes, that might have been. Justice Ginsburg: But the record shows she didn't have the authority to make that kind of an assignment. The kitchen prep sheets assigning tasks were made up by the chef and the department chef. Justice Kagan asked how the 7th Circuit standard works in practice. This case involves a university setting, she observed.
So let's say there's a professor who has a secretary, and the professor subjects the secretary to living hell on the basis of sex. But the professor has absolutely no authority to fire the secretary. Professors don't have the authority, said Kagan, who served as dean of Harvard Law School for five years. The secretary is fired by the head of secretarial services. So what does the 7th Circuit say about that? Answer: The professor would not qualify as a supervisor.
Now, in most Supreme Court cases, one side is depending the lower court decision, and the other side says the lower court was wrong. Not so in today's case. Ball State agrees that the 7th Circuit hiring and firing definition of a supervisor is wrong. But lawyer Garre, representing the university, told the justices the alternative suggested by Vance and the EEOC is too broad. Justice Alito: What sort of guidance would the opinion you're suggesting offer? Answer: You can be a supervisor without the ability to hire and fire but merely having some occasional or marginal authority to lead or direct is not sufficient to qualify an individual as a supervisor.
Chief Justice Roberts challenged Garre's case-by-case approach, apparently preferring the 7th Circuit's definition of a supervisor as only someone with the power to hire and fire. He conceded that the rule would likely impose, quote, "harsh results" in some cases but seem to suggest that a clear rule is still preferable to a case-by-case approach. The other justices seemed less enamored with the rule but were less clear about where they were heading. Nina Totenberg, NPR News, Washington.
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