The United States Supreme Court heard arguments on Monday, November 26, 2012 in a matter in which the Court will have to determine who a “supervisor” is in the context of workplace harassment.  The definition is important because employers are automatically liable for damages in most cases in which a supervisor harasses a subordinate, but may escape liability if the harassment is between “equal” co-workers.

A split has developed between federal appeals courts throughout the country regarding which employees can be considered “supervisors”.  Some appeals courts have concluded that an employee must have the power to hire to hire, fire, demote, promote or discipline other employees in order to be a supervisor.  Other appeals courts, including the Second Circuit Court of Appeals, which governs federal appeals in New York, have taken a more expansive view, and have determined that supervisors also include employees who direct and oversee a colleague’s daily work.

The case before the Supreme Court involves allegations of racial harassment brought by a kitchen assistant against Ball State University.  In that case, the plaintiff, the only black catering employee for the university, alleged that several white co-workers used racial epithets, references to the Ku Klux Klan and veiled physical threats against her.  The plaintiff argued that one such employee was a supervisor, because she had the power to direct the plaintiff’s day-to-day activities.

The trial court dismissed the case prior to trial, finding, among other things, that the alleged supervisor lacked sufficient authority over the plaintiff in order to be considered a supervisor.  The plaintiff appealed, but the federal appeals court for the Seventh Circuit dismissed the case because the alleged harasser did not have the power to hire, fire or otherwise discipline any other employee.  Therefore, the court concluded, the alleged harasser was not a supervisor.  As a result, the court held that under the facts of that particular case, the university could not be held responsible for the alleged racial harassment.

The case is Vance v. Ball State University, U.S. Supreme Court, No, 11-556.