Appellate advocacy often comes down to a conflict over the meaning of words. The Supreme Court’s opinion in Vance v. Ball State Univ. provides graphic proof that not all fights over terminology are created equal. Advocates must understand the nature of the battlefield presented by their particular case.

Vance was an employment discrimination case based upon a hostile environment theory. Under prior precedent, an employer is liable for the actions of a co-worker of the plaintiff only if the employer is negligent. However, if the person creating the hostile environment is a “supervisor,” the employer is vicariously liable and the plaintiff need not prove negligence. The employee in question in Vance had the authority to direct some of plaintiff’s work activities, but did not have authority to fire, demote, or otherwise discipline plaintiff. The controlling issue was whether the employee qualified as a “supervisor.” Some courts of appeals had employed a narrow definition of the term, confining it to persons with authority to cause tangible changes in the plaintiff’s employment condition. Other courts and the Equal Employment Opportunity Commission construed the term broadly.

The majority opinion in Vance opted for the narrow interpretation, finding that requiring a “supervisor” to have the power to take tangible employment actions against the plaintiff was implicit in the court’s prior holding, and that such a rule was more easily applied.

For attorneys practicing outside the employment arena, the case bears an important lesson. The employee argued, among other things, that the definition of “supervisor” did not necessarily require disciplinary or hiring and firing authority, but extended to those persons who had authority to direct the employee’s work. The Supreme Court noted that the term “supervisor” had both a broad and a narrow meaning, both in law and in common usage. But finding a proper definition for the term was not the real issue:

[P]etitioner is misguided in suggesting that we should approach the question presented here as if “supervisor” were a statutory term. “Supervisor” is not a term used by Congress in Title VII. Rather, the term was adopted by this Court in [our prior opinions] as a label for the class of employees whose misconduct may give rise to vicarious employer liability. Accordingly, the way to understand the meaning of the term “supervisor” for present purposes is to consider the interpretation that best fits within the highly structured framework that those cases adopted.

In other words, it is a mistake to treat the judicially-created “supervisor” rule like a “text” such as a statutory term or contractual provision. The question is not what the term means in the abstract, but what the court meant when it created the underlying rule. This in turn requires the parties to delve into the details of the prior cases to determine the jurisprudential reasoning behind the use of the phrase.

Several observations seem appropriate. First, it is quite possible that plaintiff’s counsel was misled by the fact that plaintiff was asserting a statutory cause of action. If the case were purely a common law matter, the parties would likely disagree over whether a particular requirement—“proximate causes” for instance—was satisfied, but they would probably not argue over the definition of “proximate cause”; the term would be recognized as a judicial construct. Employment discrimination law exists in a sort of no-man’s land with Title VII setting forth very broad requirements, but with courts giving shape to its real content through a half century of case law. It is easy to confuse these court-created constructions with actual positive law.

Second, the Vance case illustrates that while some justices are confirmed textualists when construing statutues and shun appeals to legislative history, they remain receptive to arguments rooted in judicial history.

Finally, it appears that the deference given to the interpretations of the law by administrative agencies is substantially reduced when the agency attempts to interpret a judicial construct such as the supervisor rule. The Supreme Court gave the EEOC’s construction of supervisor short shrift, holding that it was entitled to deference so far as it was persuasive. This contrasts markedly with recent cases holding that agency construction of statutes and regulations are entitled to special deference in the agency’s field of expertise.

Advocates must carefully assess the nature of the real issue at conflict in a given case. An adept and persuasive construction of a judicially-created term may be useless when the court responds, “But that is not what we meant.” Such an advocate is like the black-clad master swordsman in Raiders of the Lost Ark who brandishes his scimitar with great skill—until Indiana Jones simply pulls out his revolver and shoots him.