The U.S. Supreme Court is likely to take a stand somewhere between the wide parameters that have been set by lower court rulings when it decides next year who should be considered a supervisor under civil rights law, several legal experts say.

The high court heard oral arguments last week in Maetta Vance v. Ball State University et al., in which a food service worker alleged racially based harassment by someone she identified as a supervisor and retaliation for her complaints about the harassment.

Experts say employers face conflicting lower court decisions as to who should be considered a supervisor, with the 7th U.S. Circuit of Appeals calling for a relatively stringent, bright line test in its Vance ruling, and the 2nd U.S. Circuit Court of Appeals and the Equal Employment Opportunity Commission calling for looser definitions (see related story).

Observers say determining who is a supervisor is important because a company or organization can be held vicariously liable if a supervisor is accused of violating Title VII of the Civil Rights Act of 1964, which puts the burden of proof on the organization that it took steps to prevent harassment. In contrast, the burden of proof is shifted to the plaintiff in cases where a co-worker is accused of harassment.

Furthermore, employers fear a looser definition of who is a supervisor would lead to more litigation focused on the particular facts of a case, making it harder to win summary judgment dismissing the litigation because the court first would have to determine whether the person accused is a supervisor.

%%BREAK%%

During last week's oral arguments, the justices “were struggling with how to articulate a clearer standard” as to who is a supervisor “and whether that was possible” to define, said Katharine H. Parker, a partner with law firm Proskauer Rose L.L.P. in New York.

“It's really hard to predict” what the court will do, said Michael J. Eastman, of counsel at Norris, Tysse, Lampley & Lakis L.L.P. in Washington, whose firm submitted a brief on behalf of the Equal Employment Advisory Council, a nonprofit employer group, supporting Ball State.

“It's clear some (of the justices) were interested in a bright line rule,” as presented in the 7th Circuit's decision, “and others seemed to be looking for some possible evidence that (Ms. Vance's alleged harasser) might have been a supervisor under some definition that wasn't forthcoming, either,” Mr. Eastman said.

But, many legal experts doubt the high court will fully adopt the 7th Circuit's approach.

“Neither side really advocated” the 7th Circuit standard, said Andrew J. Rosenman, a partner with Mayer Brown L.L.P. in Chicago.

%%BREAK%%

“My gut sense is the judges understood that the 7th Circuit opinion seemed to be too drastic in that it ignored the realities of the workplace,” said Michael W. Foreman, University Park, Pa.-based director of Pennsylvania State University's Civil Rights Appellate Clinic, who submitted an amicus brief supporting Ms. Vance.

Gerald L. Maatman Jr., a partner at Seyfarth Shaw L.L.P. in Chicago, said that while it will be a close vote, he expects “the wing of the court that has interpreted civil rights law expansively ... is going to win out on this issue.”

However, Wendy M. Lazerson, a partner at Sidley Austin L.L.P. in Palo Alto, Calif., said, “There seemed to be some skepticism among the more conservative judges, clearly, with regard to opening a Pandora's box of having to do fact-finding in every situation to determine whether or not an individual has the kind of meaningful authority” to be considered a supervisor. “Maybe they'll come up with something that's somewhere in between” the EEOC's position and the 7th Circuit's, she said.

“I think there's going to be a compromise,” either “by watering down the 7th Circuit test or by having the employer demonstrate the harasser has actual authority to act on the employer's behalf,” said Philip M. Berkowitz, a shareholder with Littler Mendelson P.C. in New York.

“I'd love to have them adopt” the 2nd Circuit standard, said Daniel R. Ortiz, director of the Supreme Court Litigation Clinic at the University of Virginia School of Law in Charlottesville, Va., who argued the case before the Supreme Court on Ms. Vance's behalf.

“I think there's a good chance of it, but it's a hard case,” he said. “It's a pretty murky crystal ball,” he said.

Meanwhile, Lawrence Peikes, a partner at Wiggin & Dana L.L.P. in Stamford, Conn., said that while he expects the court to provide some indication of the parameters in defining who is a supervisor, there still will be “some element of grayness, no matter what” the court rules on the issue.