Vance v. Ball State University, 646 F.3d 461 (7th Cir. 2011), cert. granted, 2012 WL 2368689 (June 25, 2012)

In a week dominated by blockbuster decisions from the U.S. Supreme Court, its decision to grant certiorari and to hear the Title VII harassment and retaliation case of Vance v. Ball State University was completely overshadowed. Yet this case will undoubtedly shape harassment law for the coming decade. The issue involved in this case is:

Whether, under Title VII, the “supervisor” liability rule announced in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

The underlying facts of the case are especially egregious. Ms. Maetta Vance, the sole African American employee in Ball State’s Banquet and Catering Department, was repeatedly racially harassed by two Caucasian co-workers, one of whom had a title of “supervisor” but was not Ms. Vance’s direct supervisor. The epithets hurled at Ms. Vance included “n**ger”, “Buckwheat”, “Sambo”, and “porch monkey”, as well as reference to family connections in the Ku Klux Klan. When Ms. Vance complained, management’s response was to speak to the employees, and one of them was issued a written disciplinary warning. When the harassment and retaliation continued, Ms. Vance filed with the EEOC, and then filed suit.

The District Court granted Summary Judgment, and the Seventh Circuit affirmed, holding that the harassing employees were “co-workers” and not “supervisors”, and that the employer’s actions in reprimanding and/or providing warnings were sufficient to constitute “remedial measures”, which although clearly not effective, were deemed adequate. I find it hard to fathom that there would not be a material issue of fact as to whether a reprimand was an “effective remedial measure”, but Federal Courts routinely resolve these issues in the employer’s favor. The Plaintiff’s attorney prudently submitted just one issue for certiorari. The sole issue for the Supreme Court to decide is “whether, as the Second, Fourth and Ninth Circuits have held, that “supervisors” are persons who direct or oversee their victim’s daily work, or, as the First, Seventh, and Eighth Circuits have held, that ‘supervisors’ are limited only to those harassers who have the power to hire, fire, demote, promote, transfer, or discipline.”

Although the Ball State case is from Indiana and the Seventh Circuit, this case is important to New Jersey employees because, while New Jersey State Courts have continued to apply the broader standards in Lehmann v. Toys ‘R’ Us to harassment under the New Jersey Law Against Discrimination, many New Jersey State and Federal Courts, (the NJ Supreme Court has not ruled on the issue), have acknowledged the affirmative defenses of Faragher and Ellerth, and it is likely that the definition of “supervisor” could change depending on the ruling of the U.S. Supreme Court next term. Currently, under the NJLAD, a “supervisor”, for purposes of vicarious liability, is a combination of Ellerth and Lehmann. The Appellate Division, in Entrot v. BASF Corp., held that:

an employee is a supervisor or “agent” for purposes of Title VII if he has the actual authority to take tangible employment actions, or to recommend tangible employment actions if his recommendations are given substantial weight by the final decisionmaker, or to direct another employee’s day-to-day work activities in a manner that may increase the employee’s workload or assign additional or undesirable tasks.

If the Ellerth standard is modified, it could very well affect the future LAD standard as well. By this time next year, we will know the answer. In the meantime, this case provides one more compelling reason for New Jersey employees to bring their cases in State Court under New Jersey law, rather than the much more employer-friendly Federal Courts.

Plaintiff’s Counsel: David T. Goldberg
Donahue & Goldberg, LLP

Defendant’s Counsel: Scott E. Shockley
Defur Voran LLP

Circuit Judges: Bauer, Wood, and Sykes