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Parker Poe Joins American Council on Education in Amicus Brief

  • November 07, 2012

(CHARLOTTE, N.C.)—Parker Poe Adams & Bernstein LLP, as a member of the Higher Education Council of the Employment Law Alliance, has 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.

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.,” said Ian Cooper, counsel of record for amici. “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.”

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.

The brief can be read in its entirety here.

About Parker Poe
Parker Poe Adams & Bernstein LLP has more than 200 lawyers in five offices located in major markets across North Carolina and South Carolina. The Firm provides legal counsel to large commercial and public organizations on litigation, corporate and regulatory matters. It has been recognized in recent years as one of the fastest growing law firms in the United States and as an award-winning leader in the use of technology to provide better and more efficient service to domestic and international clients.

About the Higher Education Council of the Employment Law Alliance
The Higher Education Council of the Employment Law Alliance consists of firms and lawyers committed to serving institutions of higher education. Its attorneys provide national and worldwide support and advice on such issues as labor and employment, intellectual property, establishing out-of-state and overseas programs and campuses, regulatory compliance and immigration. The firms work together to ensure that their client’s needs are met wherever, whenever.

About The Employment Law Alliance
The Employment Law Alliance (ELA) is the world's largest network of labor and employment lawyers. With specialists in more than 135 countries, all 50 states and each Canadian province, the ELA provides multi-state and multi-national companies with seamless and cost-effective services worldwide. On the web at: