[JURIST] The US Supreme Court [official website] heard arguments in two cases [day call, PDF; JURIST report] on Monday. In Vance v. Ball State University [transcript, PDF] the court considered whether an employer can be held vicariously liable [LII backgrounder] for harassment by supervisors who oversee the daily work of the alleged victim, and if that potential liability is limited to those having firing and hiring power. In Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth [opinions] the Supreme Court held that under Title VII [text], an employer is vicariously liable for severe or pervasive workplace harassment by a supervisor of the victim. The petitioner argued that the rules resulting out of these cases, interpreted throughout the circuit courts, has been applied inconsistently and haphazardly:

The judges in the Seventh Circuit itself have recognized that the rule does not really well fit the realities of the workplace. It also just moves uncertainty from one category to another. The category of supervisor may be a little bit tidier; but, under the Seventh Circuit’s approach, the category of co-worker is very unpredictable. The Seventh Circuit itself, in Doe v. Oberweis Dairy, recognized that once you move people who can take—have this kind of power over their victims but can’t actually take annual employment actions against them into the category of co-workers, all of a sudden you have to apply a sliding scale of negligence. Not only that, but the jury is the one who applies it. So for those categories—this exact category of employee, Your Honor, the employer going forward has very little idea of whether—what standard of care is that a particular jury would apply in that case and whether the jury would decide it is met or not.

The respondents argued for the Supreme Court not to consider changing the rule but to find for its client on the merits.

The court also heard arguments in FTC v. Phoebe Putney Health System, Inc. [transcript, PDF] on state government’s expressions of anti-compete statements under Federal antitrust law. In the case, the state of Georgia allowed a local government outlet, Phoebe Putney Health System [corporate website], to lease hospitals for the state, and then the hospitals bought out the competition, creating a monopoly. The court is considering whether Phoebe should be open to antitrust suits as a state actor and if it properly employed the state action doctrine [ABA backgrounder] as a defense. Essentially, the court is considering if Georgia has allowed Phoebe Putney Health System to act improperly as a state actor. The Federal Trade Commission (FTC) argued that Georgia, in not being clear enough about it’s anti-competition platform, was open to suit.

And a power to grant proper—excuse me—a power to acquire properties, generally speaking, unadorned with any particular expression from the state about how—how that power is to be used, is something that can be used competitively or anticompetitively, and you can’t infer from that that the state really has an objective of, as I say, such as socializing its hospital services because—and—and that clarity of expression from the state is really important here, for several reasons.

The attorney for Phoebe argued that the company was simply fulfilling a mandate to provide for indigents. “These special purpose authorities do not simply have general corporate powers. They have a mandate. There is a Georgia constitutional amendment that coincided with the enactment of the Hospital Authorities Law that derogated the State’s duty to provide indigent care to its—hospital care to its citizens.”