For Workplace Harassment Lawsuits, Court Asks Who Qualifies as a Supervisor in Case Argued by UVA Law Professor

Supreme Court Litigation Clinic

Current and former Supreme Court Litigation Clinic students joined clinic co-directors David Goldberg (far left) and Professor Dan Ortiz (middle row, second from right) for oral arguments in Vance v. Ball State Universityat the Supreme Court on Monday.

November 27, 2012

University of Virginia law professor Dan Ortiz argued Monday before the U.S. Supreme Court on behalf of a Supreme Court Litigation Clinic client who allegedly faced discrimination in her job and sought to sue her employer, Ball State University in Indiana.

Following oral arguments, Ortiz said he and the clinic's students remain hopeful of a win for their client.

"I thought the court was wonderfully engaged with the issue and had given the various standards much thought," he said.

At the center of the case, Vance v. Ball State University, is whether the employee who allegedly harassed the clinic's client, Maetta Vance, should be considered a "supervisor" under Title VII of the 1964 Civil Rights Act. The employee, Saundra Davis, oversaw Vance's daily work, but lacked the authority to fire, discipline, demote or transfer her.

Under the law, an employer can be held almost automatically liable when a supervisor harasses an employee. But the employer may only be held liable in cases where a co-worker harasses an employee if the victim can prove that the employer was at fault, such as through negligence in following up on complaints. (More)

The clinic is asking the Supreme Court to expand the standards of who is considered a supervisor to include people who direct and oversee the work of their alleged victims but do not have the power to take tangible employment actions against them.

A number of current and former clinic students attended the hearing Monday.

Third-year student James Allred said it was a "fascinating experience."

"I had never attended oral arguments before, so this was my first time seeing the court in action," he said. "The 25 minutes our side had for oral argument seemed to fly by compared to the months we spent preparing the arguments. I was happy to see that we had anticipated many of the justices' questions and raised them in our in-class moot — hopefully that contributed to Professor Ortiz's excellent performance today."

Third-year student and clinic participant Levi Swank observed that the disputed facts of the case may play a significant role in its outcome.

"Justice Scalia expressed some frustration at this, commenting that the court didn't take the case to decide the disputed factual issues," he said. "I think the outcome of the case will ultimately hinge on whether the justices feel that the record is sufficiently developed and determinative for them to take the unusual step of adopting a new legal rule and still affirming the grant of summary judgment below based on the court's own application of the facts to this new rule."

Swank added that while the clinic anticipated many of the questions presented at oral argument, he was surprised by two things.

"First, even though Ball State University ended up agreeing with us that the 7th Circuit rule is too restrictive, they spent a considerable amount of their brief urging the court to adopt five guideposts to restrict enforcement of the standard we asked the court to adopt," he said. "Only one of these guideposts was mentioned during questioning, so I don't think the court took these suggested guideposts seriously."

During argument, Ortiz said that should the court find that Davis counted as a supervisor, the case should be remanded to a lower court so Vance could argue her case.

Swank didn't expect the court's reaction.

"The second thing that surprised me was the number of questions the justices directed to Professor Ortiz on whether a remand was really necessary if the court rejected the 7th Circuit's rule."


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