Yesterday, the Supreme Court heard argument in the case of Vance v. Ball State University, which involves racial harassment claims made by a kitchen worker at a state college in Indiana. Maetta Vance, the only African-American worker in the kitchen, says that she was subjected to racial slurs, such as “Sambo,” “buckwheat,” “porch monkey,” and “nigger;” threatened; and hit on the back of the head. The narrow question before the Supreme Court is whether Saundra Davis, whom Vance alleges hit her, threatened her, and used the terms “Sambo” and “buckwheat,” was Vance’s supervisor or just a co-worker. Davis had the power to direct Vance’s daily activities, but the Seventh Circuit Court of Appeals found that she did not qualify as Vance’s supervisor.

Why does this matter? According to prior Supreme Court case law, if Davis was Vance’s supervisor, then Ball State is responsible for her actions unless it can prove that it exercised reasonable care to prevent and promptly correct any harassing behavior, and also prove that Vance unreasonably failed to take advantage of any preventive or corrective opportunities Ball State provided, or failed to avoid harm otherwise. On the other hand, if Davis was a co-worker, then Ball State’s responsibility is far less: Vance would have to prove that Ball State failed to timely investigate her complaints, and also prove that Ball State failed to take prompt and appropriate action reasonably calculated to stop the harassment. If Ball State took such action, it is off the hook, even if its action actually failed to stop the harassment. Also, if an employee cannot prove that she complained of co-worker harassment (so long as the employer has a complaint process), the employer is not responsible at all.

Two Courts of Appeals, the Fourth and Second Circuits (the second of which covers New York), together with the EEOC, have concluded that a supervisor is anyone who has power to, among other things, oversee daily work assignments. However, the First and Eighth Circuits, along with the Seventh, have insisted that a supervisor is only someone with the power to hire, fire, promote, transfer, demote or reassign an employee. Even Ball State University, in its brief to the Supreme Court, recognized that this more restrictive definition is too narrow to capture many persons who are in reality supervisors. It argued instead that Davis was not Vance’s supervisor even under a more lenient test.

If the Supreme Court agrees with the Seventh Circuit, it will be much more difficult to hold employers responsible for the harassing conduct of their mid- or low-level supervisors. That will make it even more important for victims of harassment to make prompt and complete internal complaints of discriminatory behavior by co-workers and supervisors alike, or risk being left without any remedies at all under federal law.