You’re Not the Boss of Me: Commentary on Vance v. Ball State University


After my head stopped spinning from several landmark Supreme Court cases issued last week, I was able to focus on another decision on Vance v. Ball State University.

Maetta Vance, an African-American woman who was a catering assistant at Ball State University (BSU), had submitted a number of complaints alleging racial harassment and discrimination both within the HR chain of command at BSU and the Equal Employment Opportunity Commission. She claimed her supervisor was Shauna Davis.

The issue that kept her case wending its way through the Federal court system was the role that Shauna Davis played in Ms. Vance’s working life.  Was Ms. Davis the “true” supervisor of Ms. Vance?  This is an important distinction in discrimination cases because it can determine just how liable an employer can be for its employee’s behavior.

The Court decided in Vance that unless the employer has empowered the employee to be able to take “tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits,’” then, the employee isn’t really a “true” supervisor for the purposes of determining liability for the employer.

In Vance, the score for employers (especially small businesses) in this decision is 1 and the score for employees is 0.  For employers-defendants, this can limit the number of employees who can qualify as supervisors in these types of cases. For employees-plaintiffs, their attorneys will have yet another obstacle to clear in suing employers. Justice Ruth Bader Ginsberg issued her dissent requesting that Congress pass a law clarifying the role of supervisor in future legislation.  Justice Alito, who issued the majority opinion, merely rolled his eyes in response.

As a staffer who has been supporting attorneys who have worked on both sides of employment law cases such as this one, I have to say that Ms. Vance’s allegations in her complaint pale in comparison to other harassment cases I have seen over the years.  Read the Ellerth (Burlington Industries, Inc. v. Ellerth, S.C. 524 U.S) and Faragher (Faragher v. Boca Raton, S.C. 524 U.S.) sexual harassment cases the Supremes decided in the 1990s, cases that Vance relied upon. Compare them and you’ll see what I mean.

Harassment cases can and do damage the careers of both the accuser and the accused.  For plaintiffs like Ms. Vance, harassment is a real and harmful thing, leading to all sorts of untoward personal damage, as in the case I witnessed of a former female client who was sexually assaulted by her direct supervisor.  For supervisors who are accused of harassment of any kind, it can lead to investigations that can (and often do) lead to termination.  In more extreme cases, allegations of sexual and racial harassment can effectively terminate promising political/television careers. Right?

So, don’t ask me to take sides on decisions like Vance.  In my opinion, there are no winners in these types of cases.  Ever.