Will Supreme Court strengthen or weaken harassment protections?

We’re in a university setting here, so let me give you a university hypo. There’s a professor, and the professor has a secretary. And the professor subjects that secretary to living hell, complete hostile work environment on the basis of sex, all right? But the professor has absolutely no authority to fire the secretary. What would the Seventh Circuit say about that situation? [Supreme Court Justice Elena Kagan]

Would the Professor be considered the Secretary‘s supervisor in an harassment case — making the employer liable for his actions? I’ll give you the short answer offered up by the Obama Administration’s Deputy Solictor General Srikanth “Sri” Srinivasan — NO. Today’s Supreme Court hearing on Vance v. Ball State featured intense questioning from the justices.  Vance’s attorney, Daniel Ortiz, argued “as Justice Kagan’s question revealed, it produces truly perverse results. Someone who can tell you what to do in your job day-to-day, manage you during the whole job period, what kind of tasks you have to do, was not necessarily considered a supervisor, while the person upstairs in human resources that you may never see or even know would be considered your supervisor.”

Why should those concerned about workplace bullying legislation care?

Many victim/targets of abusive bosses currently rely on Title Vii claims to seek justice.  While most are unable to make a direct link to protected class status and fall apart, they do open the door to “retaliation claims.”  CNN reports that The AARP and the National Partnership for Women & Families “worry restricting who qualifies as a supervisor would allow business to give hiring and firing power to as few people as possible, to limit liability. They said that would leave the law toothless.”  That’s something that should hit home with the workplace bullying community as well.  Here’s a part of the transcript that deals with Kagan’s question:

MR. SRINIVASAN: And so you’d look at it as
a — you’d look at the professor as a coworker, and
you’d apply the same standards that applied to
harassment conducted by the coworker.
JUSTICE KAGAN: Even though, of course, it’s
actually more difficult for the secretary to complain
about the professor than it would be for the secretary
to complain about the head of secretarial services.
MR. SRINIVASAN: Yes. And I think that’s a
useful frame of reference that I was trying to
articulate earlier, which is that we can envision the
cases as falling on a spectrum between ability to

complain when the harassment is perpetrated by a
coworker on the one hand, and ability to complain when
harassment is perpetrated by a supervisor with tangible
employment authority -­
JUSTICE KAGAN: And Mr. Srinivasan, if I can
just continue on about this, because I just don’t even
understand the Seventh Circuit test. Would the Seventh
Circuit test also say that — that that person is not a
supervisor even if the professor evaluates the secretary
on a yearly basis?
MR. SRINIVASAN: The Seventh Circuit would
say that as far as we can tell. They don’t appear to
have a proviso for circumstances in which the harasser
has a role in determining tangible employment actions,
because that is one thing that the EEOC guidance takes
account of.
It’s that — not just that somebody counts
as a supervisor when they themselves undertake tangible
employment action, but if they have a substantial role
in making recommendations that in turn trigger tangible
employment actions, the EEOC would take the position
that that qualifies. Now, that’s not an issue in this
case, but that’s -­
talked several times about this going along the

spectrum. Where — where are we supposed to cut off
the — where’s the cutting line in the spectrum?
MR. SRINIVASAN: Well, I think that the -­
control over daily work activities is where we would
draw the line. And that’s what has come up the most in
the cases. The reported decisions have conflicts on -­
have a conflict on that issue, and that is where the
EEOC guidance draws the line.
Now, I think it would be helpful, if the
Court were going to issue an opinion that adopts that
line, to elaborate on — on that line a little bit in
the following sense: That relaying instructions that
are — that are disseminated by one person wouldn’t
count for those purposes. That’s in the EEOC guidance.
And — and it’s the functions of a job that actually
matter, not the job title. That is also in the EEOC
So I think there are some aspects of the
EEOC guidance that elaborate on that line about control
over daily activities that I think I would commend to
the Court, that it might well -­
JUSTICE SOTOMAYOR: Do we have a developed
record enough to do that in this case?
MR. SRINIVASAN: I’m sorry? I didn’t hear

JUSTICE SOTOMAYOR: Do — do we have a
developed record enough? Petitioner’s counsel says we
don’t, that the Seventh Circuit test didn’t permit them
to develop the record sufficiently to clarify all of
these issues. We certainly have snippets or — or lack
snippets, as the case may be. But is the record
sufficiently developed for the Court to even
pronounce — make pronouncements of that nature?
MR. SRINIVASAN: I think — I think the real
question, Justice Sotomayor, is whether the parties had
a sufficient opportunity to develop the record. Because
if you take the record in the case as a given, we think
that the record would support the grant of summary
judgment for Ball State University, because there isn’t
a sufficient showing in the record if you take it as a
given that the relevant supervisory — the relevant
putative supervisory employee, Davis, has control over
day-to-day work activities.
The question that remains is whether the
record should be allowed to be expanded.
JUSTICE ALITO: The conclusion in your brief
is that the judgment of the court of appeals should be
vacated and the case remanded for further proceedings,
and now — now you are telling us that we should — we
should basically write an opinion on summary judgment.

MR. SRINIVASAN: No. I think if you take
the record as a given, that a grant of summary judgment
in favor of the employer would be in order. But in the
normal course what this Court does when it announces a
new standard is it remands for the lower courts to deal
with the application of the standard to the facts. And
the conclusion in our brief is just, I think, a
parroting of that normal conclusion.
CHIEF JUSTICE ROBERTS: Thank you, counsel.

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