When is a Supervisor Really a Supervisor?


Is your supervisor really a supervisor?

Who is a supervisor is a VERY HOT topic these days, so hot in fact that the Supreme Court of the U.S. (SCOTUS) just heard a case about the definition in relation to Title VII discrimination claims. The SCOTUS has decided this several time already in some very famous cases that all certified HR professionals should recognize studying about. So let’s take a look at when is a supervisor really a supervisor.
Title VII cases
For my non-HR readers Title VII is that section of the Civil Rights Act of 1964 that prohibits discrimination based upon a set of “protected” categories that most everyone is familiar with. The reason the definition of a supervisor is important is that previous decisions by the SCOTUS have made it clear that employers assume liability for the actions of their supervisor and may be held accountable in a punitive way for those actions in court. The two famous cases that decided the liability issue were Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. Both of these cases dealt with the fact that companies are indeed responsible for the actions of their supervisors.
The new case of Vance v. Ball St. Univ. moves one step further by trying to expand the definition of a supervisor. Vance’s argument was that a supervisor is someone who has the ability to direct or oversee the work of another. A pretty broad statement. The other side of the coin is the definition of a supervisor as “…those who have the power to hire, fire, demote, promote, transfer, or discipline others“ according to Jon Hyman at the Ohio Employers Law Blog. According to Jon this “bright line” drawn by the court is pretty strict and not even the employer thinks this definition should be so stringent.
Why does this matter?
There are a couple of takes on the why this matters what the definition of a supervisor is. The first is naturally the liability issue. From this standpoint the stricter definition of a supervisor may be to your benefit as an employer. If the person accused of harassment or discrimination is not a supervisor there is reduced liability for the employer. They are just another employee and as long as their actions are investigated and the company corrects them then, as long as the aggrieved employee suffered no job action, there is not much liability attributed to the employer.
If the court goes with the looser definition then this opens up employers to many more claims against the company. More people will be seen as “supervisors” hence the company is liable for their actions. If this happens plaintiff attorneys will be jumping for joy. For that matter defending attorneys may be happy too, employers not so much.
NLRA definition
Arguing about supervisor status is not new in the world of the National Labor Relations Act. I wrote about this in What Defines a Supervisor? In this situation it is to the advantage of the company to have the looser definition as this protects them from being organized. The definition under the NLRA is:

The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

The problem
If the SCOTUS decides that a supervisor must meet the strict definition that will be a win for employers in terms of reducing their potential liability in Title VII cases. However, it will probably also embolden unions and the NLRB in getting the definition of supervisors under the NLRA to also match. If that happens then a whole new group of “sub-supervisors” will now be potential targets for union organizing activity. Who knows, it may also have an impact on supervisors under the FLSA and who does or does not qualify for the managerial exemption.
So you may want to watch for future developments. Tomorrow I will have some advice on protecting your company regarding the actions of your managers and supervisors.

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