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Harassment in the Workplace

REPOST ARTICLE SOURCE: http://www.nytimes.com/2012/11/29/opinion/harassment-in-the-workplace.html?ref=discrimination&_r=0

The Supreme Court this week heard the case of Maetta Vance, who, for many years, worked for the catering department of Ball State University, often as the only African-American in its dining services. In 2005, Saundra Davis, who is white, was given authority to direct the work of Ms. Vance, among others.

Ms. Vance sued Ball State for racial harassment and intimidation, claiming that Ms. Davis made her life miserable, using racial epithets and threatening her physically. The harassment, she said, did not end when she formally complained to the department’s general manager.

Under the Civil Rights Act’s Title VII, employers like Ball State are liable for discrimination that creates a hostile work environment, though the standard for liability depends on the harasser’s status. An employer is responsible for a supervisor’s harassment, but when the harasser is a co-worker, the employer is liable only if the victim proves that the employer was negligent in failing to stop the harassment.

In this case, the United States Court of Appeals for the Seventh Circuit ruled that the university was not liable because Ms. Davis was not Ms. Vance’s supervisor because she lacked “the power to hire, fire, demote, promote, transfer or discipline,” even though she directed Ms. Vance’s work. The Supreme Court should overturn the appeals court’s narrow, unfair definition of a supervisor. The justices should send the case back to the trial court to gather a full factual record and apply the legal standard that an employee who controls another employee’s work qualifies as a supervisor.

Ball State University argues that Ms. Vance should lose this lawsuit because she cannot show Ms. Davis was her supervisor under either standard. But even it rejects the Seventh Circuit’s pinched definition of a supervisor as “someone with power to directly affect the terms and conditions of the plaintiff’s employment,” which is followed by the First and Eighth Circuits. Three other federal circuits, however, apply the broader definition for supervisor, as an employee who controls the work of another worker, regardless of the job description.

During oral argument, Justice Elena Kagan gave an example of a professor who subjects a 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,” who can be fired only by the head of secretarial services. “I just don’t even understand the Seventh Circuit test,” Justice Kagan said. Under the unfairly restrictive test, the professor would not qualify as the secretary’s supervisor so the university could not be held liable for that abusive conduct.

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