In the last week of June, 2013 the Supreme Court of the United States (SCOTUS) rendered two employment related decisions that it is important for employers to note. One of these dealt with the subject of retaliation claims. I will deal with that one tomorrow. The other one dealt with the definition of “supervisor.” Now you might think it is ridiculous that the Supreme Court has to make this kind of ruling, but they have done other of a similar nature. They have decided what constitutes work clothes in the past. (See Supreme Court to decide on the Definition of “Clothes”) So according to the Supreme Court a supervisor is…..
The EEOC has long operated with a definition of a supervisor they have used to pursue discrimination and harassment charges. From their enforcement guidelines it reads:
An individual qualifies as an employee’s “supervisor” if:
•the individual has authority to undertake or recommend tangible employment decisions affecting the employee; or
•the individual has authority to direct the employee’s daily work activities.
The determination of a supervisor has been important because employers have vicarious liability for the actions of their supervisors. If supervisors engage in harassment or discrimination as a representative of the company the penalties the company pays are greater than if the harassment or discrimination were the acts of a co-worker.
The case that was ruled on was Vance v. Ball State University. The plaintiff, Vance, claimed that she was the victim of racial discrimination on the part of another employee, whom Vance claimed was her supervisor. However, the employee, while having the ability to direct work, did not have the ability to meet the standard of having “…the power to hire, fire, demote, promote, transfer, or discipline plaintiff.” Under the EEOC definition the guiding of work would have been sufficient to hold the company liable. The company did not agree and subsequently appealed to the SCOTUS.
According to the law firm Ogletree Deakins “the Court rejected the ‘expansive,’ ‘nebulous,’ and vague definition of ‘supervisor’ found in an Equal Employment Opportunity Commission (EEOC) Enforcement Guidance and ruled that the ‘ability to direct another employee’s tasks is simply not sufficient’ to warrant employer liability.” They further said that the EEOC definition causes the role of supervisor to be murky and the SCOTUS decision adds clarity and helps the courts to ascertain quickly who and who is not a supervisor.
Guidance to companies
There are two actions that companies need to take as a result of this decision. First, job descriptions need to be revised to make sure that everyone who is classified as a supervisor has in it the ability to take a “tangible employment action.” According to the EEOC these include:
- hiring and firing;
- promotion and failure to promote;
- undesirable reassignment;
- a decision causing a significant change in benefits;
- compensation decisions; and
- work assignment.
Of course in any well-run company supervisors are not allowed to make these decisions on their own. HR should always be involved in the decision to insure that these decisions are NOT being made for discriminatory reasons. Supervisors should always just suspend and not terminate on the spot.
The second action is to train or retrain all those supervisors on their responsibilities, obligations, and liabilities as a supervisor.
If not supervisors then co-workers
If people who guide work, but are not supervisors, are accused of harassment or discrimination what then? Well they are co-workers and companies still have an obligation to protect employees from the actions of their co-workers. You still have to investigate, document and discipline as appropriate. Failure to do so will still get you in trouble.
One of the things that I wondered about in this decision is whether or not it will help the NLRB and unions in their efforts to get “supervisors” included in bargaining units. I suspect that some companies may have had some employees excluded from the bargaining unit by arguing that since the employees “guided and directed work” they should be defined as supervisors and thus not eligible for inclusion in the bargaining unit. Now with this clearer definition provided by the SCOTUS it could potentially backfire on companies in their anti-union efforts. I guess we will have to wait and see if the NLRB latches on to this definition.
Supreme Court Issues Two Key Title VII Rulings by Ogletree Deakins
Legal Alert: Supreme Court Adopts Narrow Definition of Supervisor Under Title VII by Joshua Sudbury, Ford Harrison
U.S. Supreme Court Adopts a Narrow Definition of a Supervisor in Harassment Claims appearing in JD Supra Law News