Court: Who counts as a supervisor?

Associated Press Modified: November 26, 2012 at 3:16 pm •  Published: November 26, 2012

"The professor does not apply as a supervisor," answered Sri Srinivasan, a deputy solicitor general.

But Chief Justice John Roberts and Justice Samuel Alito didn't seem a fan of the EEOC's definition of supervisor when it comes to harassment claims, with the chief justice saying that the 7th Circuit decision at least made it clear who can or cannot sue. What if, Roberts said, a senior employee gets to pick the music that employees have to listen to at work and says to a junior employee, "If you don't date me, it's going to be country music all day long."

Or "hard rock," added Justice Antonin Scalia, to chuckles from the courtroom.

The choice of music affects an employee's daily work, Roberts said, as would other privileges given to senior employees. At least with the 7th Circuit's rule, "you don't have to go through case-by-case," Roberts said.

In an unusual move, lawyers for Vance, the federal government and Ball State University all agreed that the 7th Circuit got it wrong, saying the definition of "supervisor" should be broader than what the appeals court had ruled. The 7th Circuit's "rule does not well fit the reality of the workplace," said Daniel R. Ortiz, Vance's lawyer.

"There's broad agreement on what the standard should be," said Gregory G. Garre, lawyer for Ball State University, who argued that even though the definition should be broader, Davis still would not be considered a supervisor.

Their agreement seemed to frustrate some of the justices because they expected to hear an argument over what the lower court did, not an agreement that it was wrong. "There's no one here defending the 7th Circuit," Scalia said at one point.

The justices are expected to make a decision sometime next year.