Another loss for the United States. From Justice Alito’s opinion in Vance v. Ball State:
The United States urges us to defer to the EEOC Guidance. Brief for United States as Amicus Curiae 26–29 (citing Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944)). But to do so would be proper only if the EEOC Guidance has the power to persuade, which “depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.” Id., at 140. For the reasons explained below, we do not find the EEOC Guid ance persuasive.
The United States, on the other hand, while applying the same open-ended test for supervisory status, reaches the opposite conclusion. At least on the present record, the United States tells us, Davis fails to qualify as a supervi sor. Her job description, in the Government’s view, is not dispositive, and the Government adds that it would not be enough for petitioner to show that Davis “occasionally took the lead in the kitchen.” Brief for United States as Amicus Curiae 31 (U. S. Brief). This disagreement is hardly surprising since the EEOC’s definition of a supervisor, which both petitioner and the United States defend, is a study in ambiguity.
And Alito focuses on the performance of Sri Srinivasan arguing on behalf of the United States. Call him Judge Sri now
The vagueness of this standard was highlighted at oral argument when the attorney representing the United States was asked to apply that standard to the situation in Faragher, where the alleged harasser supposedly threat ened to assign the plaintiff to clean the toilets in the life guard station for a year if she did not date him. 524 U. S., at 780. Since cleaning the toilets is just one task, albeit an unpleasant one, the authority to assign that job would not seem to meet the more-than-a-limited-number-of-tasks requirement in the EEOC Guidance. Nevertheless, the Government attorney’s first response was that the author ity to make this assignment would be enough. Tr. of Oral Arg. 23. He later qualified that answer by saying that it would be necessary to “know how much of the day’s work [was] encompassed by cleaning the toilets.” Id., at 23–24. He did not explain what percentage of the day’s work (50%, 25%, 10%?) would suffice. The Government attorney’s inability to provide a definitive answer to this question was the inevitable con- sequence of the vague standard that the Government asks us to adopt. Key components of that standard— “sufficient” authority, authority to assign more than a “limited number of tasks,” and authority that is exercised more than “occasionally”—have no clear meaning. Apply ing these standards would present daunting problems for the lower federal courts and for juries