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Supreme Court Finally Defines “Supervisor” for Discrimination Cases



By Sara Ellis

Employees not catering to each other
An African American catering assistant for a public university filed a complaint with the university against another employee, a catering specialist, alleging racial discrimination and harassment. The assistant claimed the specialist, among other things, gave her a hard time at work by glaring at her, slammed pots and pans around her, and intimidated her. Although the university attempted to rectify the problem, the assistant’s workplace problems with the specialist continued, and the assistant eventually sued the university for discrimination and harassment under Title VII of the Civil Rights Act of 1964.

What is a supervisor?
The Supreme Court addressed the issue of whether the specialist was the assistant’s supervisor.  If the specialist was merely the assistant’s co-worker, the university could only be directly liable if it was negligent in permitting the harassment to occur.  If the specialist was a supervisor, however, the university could be held vicariously liable for the specialist’s harassment of the assistant.

Title VII does not define the term “supervisor,” and prior to the Supreme Court’s decision in the present case, courts across the country were split on the proper definition. While some courts required a supervisor to have the ability to make tangible economic or employment decisions, like hiring, firing, promoting, demoting, and reassigning, other courts took a broader approach, also classifying supervisors as those who could recommend employment decisions or direct an employee’s daily work activities.  The Supreme Court sided with the former set of courts finding an employer may be vicariously liable for an employee’s unlawful harassment only when the employee has the authority to take tangible employment actions against the victim. The Court stated something more than the ability to control subordinates’ daily work was required to warrant vicarious liability.  Here, the specialist did not have the power to hire, fire, demote, promote, or transfer the assistant, and accordingly was not a supervisor.

What is the effect of this ruling?
The Supreme Court explained its decision would help resolve litigation at earlier stages, because supervisor status can usually be readily determined with written documentation. The decision will also help with cases going to trial, as plaintiffs will know whether they have to prove negligence or whether the employer will have the burden to prove affirmative defenses.

Employers should be aware this ruling does not absolve them of liability because an employee may still sue for negligence. Moreover, if an employer tries to work around the “supervisor” definition and concentrates all decision making authority in a few individuals, it likely will not isolate itself from liability.  Other employees will still have to carry out these acts as the employer has essentially delegated the supervisor power to them.


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