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Who Is a “Supervisor” Under Title VII and Why You Should Care

December 18, 2012
By Scott J. Wenner

The U.S. Supreme Court heard argument late last month in Vance v. Ball State University, No. 11-556. This case was accepted for argument by the Court to resolve a conflict among the Courts of Appeals over how to decide whether an employee who allegedly has engaged in unlawful harassment or discrimination under Title VII is a “supervisor.” 

Because of an unexpected development in the case, it is possible that the Supreme Court will send the case back to the Seventh Circuit without resolving the conflict. If it decides the issue, the outcome will be important for employers, for a very practical reason. Under the Supreme Court’s Faragher, Ellerth and Meritor Savings Bank v. Vinson precedents, employers are strictly responsible for unlawful harassment and discrimination by supervisors. Once the unlawful conduct by a supervisor is found to have occurred, the employer has no defense: no amount of training, investigating or disciplining of responsible parties can rescue the employer from the consequences of the supervisor’s unlawful harassment or other discriminatory acts. 

Thus, a significant enlargement of who qualifies as a supervisor necessarily represents an equally significant expansion of risk that employers will be unable to defend against claims of harassment by a member of this larger group that now includes mere work leaders along with the much smaller group having authority to hire and fire. Should this become the national standard, employers will have to redouble their preventive efforts through mandatory training , sharply effective and efficient communication of policies and procedures, attention to company culture, and reward and disciplinary systems that are consistent with prevention of harassment and discrimination. 

The background of all this begins with the Seventh Circuit, which decided Vance, and joined in published decisions by the First and Eighth Circuits, requiring an employee to be invested with substantial authority over the terms and conditions of employment of other employees before being considered a supervisor. According to these courts, the authority conferred by the employer must include the power “to hire, fire, demote, promote, transfer, or discipline an employee.” These courts view their rule as proceeding necessarily from Supreme Court reasoning in its familiar Faragher, Ellerth and Meritor Savings Bank v. Vinson decisions and from traditional agency law concepts embraced by the holdings of those cases. 

Opposing the stricter construction of “supervisor” employed by the First, Seventh and Eighth Circuits, the Court of Appeals for the Second Circuit, joined by the Fourth and Ninth Circuits, have expanded the concept of who is a supervisor under Title VII. Relying on the EEOC’s expansive definition in its enforcement guidelines, these courts join the EEOC in including within the supervisor category employees having “authority to direct the employee’s daily work activities.” (EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 FEP Manual (BNA) 405:7654 (1999)).

For a more detailed analysis of this issue, please see our Schnader Labor and Employment alert: “Who Is A “Supervisor” Under Title VII and Why You Should Care.”

For more information regarding this or other labor and employment issues, please contact Scott J. Wenner,  chair of the Schnader’s Labor and Employment Practices Group. 
The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.
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