In its Faragher and Ellerth decisions, the U.S. Supreme Court established differing standards for employer liability for harassment under Title VII. If the alleged harasser is a supervisor, the employer is generally liable for the conduct, whether or not it knew about it and whether or not it took prompt action, unless the employer can establish a difficult affirmative defense. However, if the alleged harasser is a co-worker, the employer is not liable for the conduct unless the plaintiff can prove that it knew or should have known of the harassment and failed to intervene.

Last week at the end of its current term, the Supreme Court agreed to review a case involving the definition of who is a supervisor under the Faragher/Ellerth test. Vance v. Ball State Univ. is a racial harassment case where the alleged harasser nominally oversaw and directed the plaintiff's work, but did not have the authority to hire, fire, or directly discipline the plaintiff. The Seventh Circuit Court of Appeals agreed with Ball State's position that in this circumstance, its liability should be judged under the lower co-worker standard.

Federal Courts have differed on this issue. The Fourth Circuit, which includes North Carolina and South Carolina, has adopted a position similar to the Seventh Circuit. Other federal appellate courts and the EEOC take the view that an employee who directs other employees' day-to-day work activities is a supervisor under Title VII, even if he/she lacks the direct authority to make tangible decisions affecting those employees' status.

Resolution of this case by the Court would settle questions over whether harassment claims involving foremen and other quasi-supervisory employees should be decided under the tougher supervisor liability standard. Oral arguments in this case will be scheduled for the Fall, with a decision expected in late 2012 or early 2013.