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The New Definition of ‘Supervisor’ and What it Means for Employers

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What is the meaning of life? While you were busy figuring out that question, the Supreme Court of the United States (SCOTUS) has finally figured out the meaning of “supervisor."

Last week, the highest court in the land ruled that employees who lack power to hire, fire, demote, transfer or discipline other workers are not “supervisors” under Title VII of the Civil Rights Act. In a close 5-4 decision, the justices adopted this very narrow definition of supervisor and rejected the EEOC’s broader interpretation of the term. This is a win for employers, but what does it all mean to your life in HR?

Case in Point: Here’s the backstory: Maetta Vance worked part time as a catering assistant at Ball State University in Indiana. She was the only black employee working in her department. She made multiple oral and written complaints to her employer about being racially harassed. Ball State promptly investigated every complaint and took disciplinary action in some circumstances.

Regardless, Vance sued her employer for racial harassment. She argued that Ball State was strictly liable because one of the harassers was a “supervisor” because he “did not clock in” and told her “what to do.” Vance argued she should win the hostile work environment claim because, under Title VII of the Civil Rights Act, employers are held strictly liable for a supervisor’s harassment.

Ball State argued that it should not be held strictly liable because the “supervisor” who Vance complained about was actually a “co-worker.” Ball State further defended the claims, noting that an employer can escape Title VII liability based on co-worker actions if “it takes prompt and appropriate corrective action reasonably likely to prevent the harassment from occurring.” And, that’s exactly what Ball State said it did. Every time Vance complained, Ball State investigated. Every … single … time!

A district court agreed with Ball State and dismissed the case, saying Ball State did not have extra liability because the co-worker did not qualify as a supervisor. The 7th Circuit Court of Appeals also sided with Ball State, and it gave an even narrower definition of a supervisor than other courts, as well as the definition used by the EEOC—which said a supervisor is someone with the ability to control a co-worker's daily activities.

Drum roll please … The Supreme Court agreed that an employee cannot pin Title VII hostile work liability on an employer unless the bad apple doing the harassing is a “supervisor” within that very narrow definition of having the formal authority to hire, fire, promote, transfer or discipline another worker. (Vance v. Ball State Univ., U.S., No. 11-556, 06/24/13)

3 Lessons Learned … Without Having To Go To (the U.S. Supreme) Court

1. Review job descriptions. The SCOTUS made this long-standing complex issue very cut and dried. If you want to classify an employee as a “supervisor,” then reflect in his or her job description the authority to hire, fire, promote, transfer or discipline another worker. Otherwise, if the job description does not have this magic language, you can argue the employee is not a supervisor and therefore should not hold your organization strictly liable for Title VII harassment. But, everyone has to play fairly by the job description. And if an employee has the authority, but it’s not listed in the job description, it will smell fishy and courts have sensitive noses for dishonesty.
2. Review EEO training messages. Make sure all supervisory training clearly reflects the message that, because of their authority to hire, fire, promote, transfer or discipline another worker, they can hold your organization strictly liable for unlawful conduct. Regardless, other roles of being “in charge” like “leads” should be trained to comply with your organization’s EEO policies and the laws even though there no longer exists a question of them creating strict liability. Remember, they can still create liability. This landmark decision did not wipe out your company’s responsibilities to prevent and promptly correct harassment.
3. Review your investigation procedures. This case underscores how critical it is to take prompt, effective action every time there is a “chirp” of harassment, discrimination or retaliation. No court has ever whacked an employer for properly  “over investigating.” Rather, it’s been the golden key to unlock the courtroom door and escape co-worker harassment liablity.

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