On November 26th, the Supreme Court will hear arguments in the case Vance v. Ball State University (11-556) coming from the 7th Circuit. The issue in this case centers around the word “supervisor.”
In Faragher/Ellerth, as decided by the Supreme Court, the Court stated there is vicarious liability when the sexual harasser is the victim’s supervisor. In other words, if the harasser is the supervisor, the employer is immediately liable unless two exceptions (described in Faragher/Ellerth) are met.
The issued posited to the Supreme Court is whether the supervisor liability rule is limited to those who have the authority to direct and oversee the victim’s daily work, or limited to those who have the power to hire, fire, demote, promote, transfer or discipline.
What’s so interesting about this case, you may ask? The fact that courts all throughout the US are split on this definition. Will this definition be broadly construed, narrowly construed? If so, what would the consequences be of this decision. Will sexual harassment claims be significantly reduced? Will attorneys think of these claims as incredibly risky, and be less likely to pursue these claims?
As it is, civil rights have traditionally been limited. The purpose of Title VII is to be broadly construed in order to provide civil rights protection. The purpose of Title VII appears to be eaten away slowly. It really does remind me of ADA before Congress enacted the ADAA.
In the ADA situation, Courts continuously narrowed the definitions and limited the extent to which a disability was covered by the Act. Under the ADA, a disability was not covered if medical treatment reduced its impairment whereby the impairment was no longer significant. When the ADAA was passed, Congress sternly pointed out to the extent the Courts had gone out of their way to prevent coverage under the Act for disabilities. In the ADAA, Congress specifically pointed to Supreme Court cases narrowing coverage under the Act.
Is it time for Congress to act once again?