The petitioner argued:
"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."
Transcripts
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Supreme Court hears arguments on employer liability for employee harassment (Jurist.com)
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