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Justices hear arguments in Ball State case

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In a case that hinges on the definition of “supervisor,” the United States Supreme Court heard arguments Monday morning in a lawsuit filed by a Ball State University employee.

Maetta Vance claimed that her co-worker’s racially charged statements along with unfavorable treatment by her supervisors created a hostile work environment. Vance claimed that she was harassed by another employee that she alleges had the authority to tell her what to do and how to clock her hours. Vance, who says she was the only African-American working in her department, sued the school for violating Title VII of the Civil Rights Act of 1964, but the university argued that it can’t be held liable because Vance’s harasser did not have the power to fire, hire, demote, promote, discipline or transfer her.

Both the federal court in Indianapolis and the 7th Circuit Court of Appeals ruled in favor of Ball State.

In Faragher v. City of Boca Raton, 524 U.S 775 (1998), and Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998), the justices held that under Title VII, an employer is vicariously liable for severe or pervasive workplace harassment by a supervisor of the victim. If the harasser is the victim’s co-employee, the employer is not liable absent proof of negligence.

The SCOTUS has to decide whether the supervisor liability rule applies to harassment by people whom the employer authorizes to direct or oversee the victim’s daily work, or whether the supervisor liability rule is limited to those harassers who have the power to “hire, fire, demote, promote, transfer or discipline” their victim.

The Circuit courts have been split in decisions on this issue.

Argument transcripts and audio will be available at the end of the week on the Supreme Court’s website. The solicitor general was given 10 minutes during the oral argument to participate as amicus curiae in support of neither party.

The case is Vance v. Ball State University, et al., 11-556. Daniel R. Ortiz, of the University of Virginia School of Law, Supreme Court Litigation Clinic, will argue on behalf of Vance. Gregory G. Garre of Latham & Watkins LLP in Washington, D.C., will argue on behalf of Ball State and other respondents. Ball State is also represented by Scott E. Shockley of DeFur Voran in Muncie.

Several groups have filed amicus briefs, including the Chamber of Commerce of the United States, the American Council of Education, the National Partnership for Women & Families, and the Equal Employment Advisory Council.

Indiana University Maurer School of Law associate professor Deborah Widiss says the question of who "counts" as a supervisor for purposes of racial and sexual harassment is extremely important for workers across the country. She said in a statement released by the law school that some courts' definitions of "supervisor" in anti-discrimination law doesn't match the reality of today's work place.

"The lower courts in Vance held that only individuals who had authority to make formal personnel decisions, such as hiring, promotion or termination, should be considered 'supervisors,'" she said. "However, employees often have minimal contact with the people who make those formal decisions, but they interact every day with intermediate supervisors, such as shift workers. And these intermediate supervisors are often the ones who are best positioned to create a hostile work environment."

Widiss hopes that the justices will broaden the definition of "supervisor" to include employees who control other employees' daily work or who can use their authority to facilitate harassment.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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