More than a dozen firms from the Higher Education Council of the Employment Law Alliance joined the American Council on Education, the American Association of Community Colleges, the American Association of State Colleges and Universities, the Association of Governing Boards of Universities and Colleges and the Association of Public and Land-grant Universities in the submission of an amicus curiae brief in the U.S. Supreme Court case Vance v. Ball State University, 11-556. Counsel of record for amici is Ian Cooper of Tueth, Keeney, Cooper, Mohan & Jackstadt P.C. of St. Louis – whose firm is a member of the ELA’s Higher Education Council.
In Vance, the court is reviewing whether the “supervisor” liability rule established in past decisions Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth applies to all individuals empowered by an employer to assign and supervise work (an expansive definition of the term “supervisor”), or is limited to individuals who both assign and supervise work and can “hire, fire, demote, promote, transfer, or discipline” others.
“This is a critically important issue for the approximately 4,500 colleges and universities in the U.S. In the brief, we assert that a more narrow definition of ‘supervisor’ consistent with Faragher and Ellerth is wholly appropriate and enhances the ability of institutions of higher education to focus their scarce resources on the screening, training and monitoring of supervisors rather than devoting them to litigation,” said Cooper.
The brief argues that when determining whether an employee is a supervisor for purposes of imposing vicarious liability under Title VII where the harassment does not result in a tangible employment action, a plaintiff should be required to plead and prove: (1) that he or she subjectively believes that the harasser has the authority to impact significant rather than trivial conditions of employment; (2) the harasser, in fact, possesses such authority; and (3) the existence of a sufficient nexus between the authority conferred and the harassment. That nexus is shown when the authority materially enables or facilitates the harassment. The Higher Education Council believes this is a workable definition that appropriately limits the application of vicarious liability while enhancing the important goal of preventing harassment and discrimination on campus.
Oral arguments in Vance v. Ball State University, 11-556 took place on November 26, 2012. The brief can be read in its entirety here. Stay tuned for the decision. We’ll keep you posted.