The U.S. Supreme Court on Monday was urged to adopt an expansive definition of who qualifies as a “supervisor” for holding employers liable for harassing conduct by an employee.

The justices heard arguments in Vance v. Ball State University, a case involving the alleged racial harassment of Maetta Vance, an African American catering assistant at the university, by a white employee in the same division. Vance has asked the Court whether under Title VII of the Civil Rights Act of 1964, a supervisor must be someone with authority to hire and fire employees or whether it is sufficient that the individual manages an employee’s daily activities.

In Vance’s case, the U.S. Court of Appeals for the Seventh Circuit adopted a restrictive definition of supervisor—someone with authority to make tangible employment decisions, such as hiring, firing, demoting, transferring or disciplining an employee. The First and Eighth circuits have adopted similar tests. However, the Second, Fourth and Ninth circuits apply a broader definition, one similar to the definition adopted by the Equal Employment Opportunity Commission. Under the EEOC’s guidance, a supervisor is an employee who has authority to undertake or recommend tangible employment actions or authority to direct the victim’s daily activities.

In an unusual twist, no party to the Vance case on Monday argued in favor of the Seventh Circuit definition. But they did disagree on the ultimate disposition of Vance’s particular case.

Representing Vance, Daniel Ortiz of the University of Virginia School of Law argued that the Second Circuit’s definition was most consistent with the Court’s precedents and Title VII’s purpose. Under that definition, a court asks whether authority granted the harasser “enabled or materially augmented” the harasser’s ability to create a hostile work environment for his subordinates.

Chief Justice John Roberts Jr. challenged that approach, saying, “I would have thought the benefit of the Seventh Circuit’s test is that you don’t have to go through those case by case. It makes clear what type of analysis is going to be applied to the allegation.” And Justice Samuel Alito Jr. suggested that lower courts would find it difficult to grapple with Ortiz’s favored test.

However, Ortiz’s greatest difficulty came in persuading a number of skeptical justices that the case should be reversed and remanded when there appeared to be little evidence that the harasser in Vance’s situation even met the definition of supervisor that he was advocating.

Deputy Solicitor General Sri Srinivasan urged the Court to adopt the approach that recognizes that an individual with authority to direct daily work activities qualifies as a supervisor. But Roberts again pushed back, saying, that approach creates a “broad continuum in which we’re going to have countless cases,” each dependent upon its own facts.

“There are going to be cases at the margins that raise difficult questions,” acknowledged Srinivasan, but, he added, “Control over daily activities is where we draw the line.”

Srinivasan also told the justices that the government believed the record in the case supported the lower court’s grant of summary judgment in favor of the university. He said the Court could make its own judgment on the basis of that record, or follow its usual practice when it announces a new standard– remand the case to the lower court to apply the correct standard.

The university’s counsel, Gregory Garre of Latham & Watkins, said the Court should affirm the Seventh Circuit decision, although, “We don’t think the Seventh Circuit test is the complete answer.”

Garre urged the justices to adopt the EEOC or Second Circuit test for who qualifies as a supervisor but to make clear that there are “meaningful limits” to that broader category of employees and that Vance’s harasser does not qualify.

“Limited or marginal occasional authority to lead or oversee by virtue of a paper title, its grade, or seniority is not sufficient,” he said. The Court, he added, should not remand the case because Vance’s claim “was extensively looked at below.”

The U.S. Chamber of Commerce and other business groups have urged the justices to approve the Seventh Circuit’s “bright-line” definition. The National Employment Lawyers Association and the National Partnership for Women & Families have advocated the EEOC’s approach.

Marcia Coyle can be contacted at