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Posted Nov. 26, 2012

UVA Law Professor Argues Workplace Harassment Case Before Supreme Court

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Ortiz

Dan Ortiz, a University of Virginia School of Law professor and director of the Law School's Supreme Court Litigation Clinic, will argue on behalf of Maetta Vance before the Supreme Court today in Vance v. Ball State University.

The U.S. Supreme Court is scheduled today to hear oral arguments in an employment discrimination case brought by a woman represented by the University of Virginia School of Law's Supreme Court Litigation Clinic.

UVA law professor and clinic director Dan Ortiz will argue before the justices that the employer of the clinic's client, Maetta Vance, can be sued for employment discrimination.

Vance, who worked as a cook at Ball State University in Indiana, says she was the victim of harassment by another Ball State employee who oversaw her daily work, but did not have the authority to fire, discipline, demote or transfer her.

The central question of the case, Vance v. Ball State University, is whether the employee who allegedly harassed Vance ought to be considered a "supervisor" under Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex and national origin. (More)

Ortiz said he will argue that "someone who can direct the work activities of another employee counts as that employee's 'supervisor' for purposes of Title VII and that the term isn't limited to those who can hire, fire, and set the wages and other conditions of employment of the employee."

Second-year law students Hanchang Sohn and Kirk Sosebee worked for the clinic as research assistants over the summer and helped Ortiz and clinic instructor David Goldberg draft the opening brief. Five third-year students in the clinic — Levi Swank, Paige Anderson, James Allred, Archith Ramkumar and John Schiltz — worked on the case this fall, contributing to the merits reply brief, as well as preparation for oral arguments.

Former clinic students Katie Shin, Lucas Beirne and Will Sohn — all of whom graduated from the Law School in May — helped draft the petition for writ of certiorari and other key filings.

The Supreme Court has touched on the issue before. In a pair of cases in 1998, Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, the Supreme Court found that when an employee is harassed by another employee, the employer's liability depends on whether the harassing employee is a "supervisor."

If the harassing employee is a "supervisor," then the employer is vicariously liable — almost automatically — if some adverse job action was taken against the victim, such as a firing or demotion. If no such adverse action was taken, the employer could still be held vicariously liable for harassment by a supervisor but the employer would be protected if it demonstrates that it had taken steps to prevent harassment, such as a sexual harassment policy and a complaint procedure for victims of harassment and that the employee had unreasonably failed to take advantage of the complaint procedure.

If the harassing employee is not the victim's supervisor, then the employer is generally not liable unless the victim proves the employer was somehow at fault, such as by being negligent in following up on complaints.

In Vance's case, if the allegedly harassing employee is deemed a supervisor, then it becomes much more likely that Ball State University would be liable for the harassment. If the allegedly harassing employee is deemed Vance's co-worker, then it would be significantly more difficult to hold Ball State University liable.

Lower courts have split over their interpretation of the "supervisor liability rule." Some of the federal courts of appeal have found that only employees who can fire, demote or reassign are considered supervisors. Other circuit courts, however, have found that workers who oversee day-to-day duties may also be deemed supervisors.

In its brief, the clinic recommended that the Supreme Court go beyond merely finding that the 7th U.S. Circuit Court of Appeals erred when it excluded from the coverage of Ellerth and Faragher supervisors who direct and oversee the activities of their victims but lack the power to take tangible employment actions against them.

Instead, the clinic argued, the court should adopt a rule outlined by the 2nd U.S. Circuit Court of Appeals that says an employee counts as a supervisor whenever "the authority given by the employer to the [harassing] employee enabled or materially augmented the ability of the latter to create a hostile work environment for his or her subordinates."

The case will mark Ortiz's third time arguing a case before the Supreme Court. He said he is optimistic heading into oral arguments.

"We have good hope that the court will adopt something close to the rule of law we champion," he said. "Indeed, the respondent has now adopted a version of it and has itself discredited the rule the court below applied."