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    Edwards Wildman Joins Amicus Brief in the US Supreme Court Case Vance v. Ball State

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    Edwards Wildman is pleased to announce that it has joined the Higher Education Council of the Employment Law Alliance, 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. Edwards Wildman is a member firm of the Higher Education Council.

    In Vance, the court is reviewing whether the "supervisor" liability rule established in the past decisions of 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.

    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.

    Oral arguments in Vance v. Ball State University, 11-556 are scheduled for November 26.

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