When the Supreme Court starts handing down decisions just one hour from now, most Court watchers will be awaiting four high profile cases \u2014 the two race cases that will decide the fate of affirmative action and the Voting Rights Act, and the two marriage equality cases. A fifth case, however, could prove just as significant as these much better known cases \u2014 and could potentially leave thousands of workers virtually helpless in the face of racial and sexual harassment.<\/p>\n
The law provides very robust protections to employees who are harassed by their supervisors, but it is drastically more difficult for an employee to win a racial or sexual harassment lawsuit if they have only been harassed by coworkers. In the later case the worker must show that their employer has \u201cbeen negligent either in discovering or remedying the harassment.\u201d For this reason, it matters a great deal who qualifies as a \u201csupervisor\u201d for purposes of sexual harassment law. If the word is defined too narrowly, it could encompass employees who have the power to intimidate their victims into keeping their harassment secret.<\/p>\n
That\u2019s more or less what the lower court did in Vance v. Ball State University, which is now pending before the Supreme Court. According to the United States Court of Appeals for the Seventh Circuit, a \u201csupervisor\u201d is someone whose authority \u201cprimarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee.\u201d Employees who can assign tasks to other workers, or even those who direct their day to day activity, don\u2019t count.<\/p>\n
It\u2019s not difficult to imagine what could happen if the Supreme Court upholds this rule. At oral argument, Justice Elena Kagan raised the hypothetical of a secretary who works for a professor, and the professor \u201csubjects that secretary to living hell, complete hostile work environment on the basis of sex.\u201d Under the Seventh Circuit\u2019s rule, this professor nonetheless does not qualify as a \u201csupervisor\u201d if the secretary can only be fired by a bureaucrat with the job title \u201cHead of Secretarial Services,\u201d even if the professor directs every minute of the secretary\u2019s day. The plaintiff in Vance alleges a similar situation. She worked in a university kitchen, and claims that a racist supervisor assigned her to menial tasks such as chopping vegetables, rather than more desirable tasks such as preparing meals or baking items from scratch, because that supervisor wanted to lash out against her for being black.<\/p>\n