August 2013 Bar Bulletin
 
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August 2013 Bar Bulletin

"Someone Who'll Watch over Me": Supreme Court Clarifies Who Is a Supervisor

By Patrick S. Pearce

 

On June 24, the U.S. Supreme Court issued rulings in Vance v. Ball State University that provide valuable clarity in determining who will be considered a "supervisor" for purposes of harassment claims.

The Court held that an employee may be considered a "supervisor" only when the employer has empowered the employee to take tangible employment action against the individual claiming harassment. In Vance, the Court ruled that the ability to take "tangible employment actions" against the complaining worker is the "defining characteristic" of supervisory status.

The distinction is important. Employers are exposed to substantially more risk of liability when a "supervisor" is accused of harassment. Under prior Court decisions, if a supervisor engaged in harassment that culminated in a tangible employment action, the employer was strictly liable for the supervisor's actions.

If harassment is committed by a non-supervisory co-worker, a claimant has a more difficult burden and must show that the employer was negligent in allowing the harassment in order to establish liability. With non-supervisory workers, the employer also may have an absolute defense to any claims if steps were taken to prevent or correct problems and the complaining worker unreasonably failed to take advantage of avenues for internal investigation and resolution.

Prior to Vance, federal appellate courts had been split on the method for determining supervisory status with some courts following a significantly broader test applied by the EEOC. Under the EEOC test, supervisory status depends on whether an individual is able to exercise significant direction of another's day-to-day work. As stated by the Court in Vance, however, the EEOC test allows for "remarkable ambiguity" in determining whether an individual is a supervisor and inherently calls for a case-by-case determination heavily dependent on particular facts and circumstances.

This "remarkable ambiguity" was significant to the Court in rejecting the EEOC test and imposing the "tangible employment action" standard. In Vance, the majority expressed the expectation that a test requiring the ability to take "tangible employment action" would be easily workable, providing courts, employers and employees clarity for more efficient resolution of questions on supervisory status.

Going forward, employers should consider the following in light of the Vance decision:

  • Employers should assess and clarify as necessary the authority of individuals who might qualify under the Vance test, but are not clearly identified as "supervisors." The key question is whether an individual has authority to affect another worker's employment status including hiring, firing, promotion and work assignments. Both employers and employees should know just who is a "supervisor" in light of Vance.

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