Back to the US Supreme Court in Vance v. Ball State University on the Issue of the Definition of a “Supervisor” Under Title VII

Natasha Baker
Hirschfeld Kraemer LLP
San Francisco, CA

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.

Welcome! An Introduction to Our Blog and an Update on Milligan v. Board of Trustees of Southern Illinois University

Michael Porter
Miller Nash LLP
Portland, OR

Welcome to the first entry of our blog facilitated by the Higher Education Council of the Employment Law Alliance.  This blog will have thoughts and updates from ELA firm attorneys who work regularly on higher education issues.  We hope it sparks a thought or discussion with you and your colleagues, and we welcome comments below.

On with the first post—our friends Ian Cooper and Kate Nash at Tueth Keeney recently obtained a decision out of the Seventh Circuit, Milligan v. Board of Trustees of Southern Illinois University, affirming summary judgment in favor of Southern Illinois University (“SIU”).  Taking the plaintiff’s facts as true at summary judgment (as a blogger must), the plaintiff—a student and employee—said that when he reported alleged same-sex sexual harassment by an emeritus professor to a department chair, the department chair brushed him off by stating that the professor was “an old man with a compromised mental state” who had once been a great scientist and done great things for the school (such as donate $2.5 million).  As a result, the professor “could not be held accountable for his actions.”

Regardless of whether the department chair actually said this (and he may well not have), it raises this question:  Who is wandering around campus whose “value” comes down to simply having been around for a long time and being a recognizable campus institution?  I’ve worked directly on four campuses, and on each, a person or persons come to mind about whom everyone wonders:  What is this person doing around here?  The former student life employee who just “hangs out” at a residence hall, the Super Fan at sporting events who also gets a small stipend for firing up the crowd, or, as in Milligan, the emeritus professor who has an institute on campus named after him for his former contributions and now makes a harassing comment or two from time to time.

This case turned out well for SIU because SIU acted reasonably as a matter of law after the report of harassment.  (The case contains a number of helpful nuggets related to Title VII and Title IX, by the way, so the decision is worth reading.)  But the case does beg the question:  Who is on our campuses?  Does our campus wanderer or hall roamer have a purpose?  If so, has the purpose been weighed against the fact that the person’s actions could be attributed to the school?  If they could be, has the school ensured that it has a vehicle to address any conduct concerns that might arise?  Or will someone who complains about this person just be told, “Don’t worry—he [or she] is harmless”?  In such cases, we may ultimately prevail on the claim, but it may take going to an appellate court to do so.