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The Definition of "Supervisor" Under Title VII of the Civil Rights Act of 1964

Harassment Photo

Title VII of the Civil Rights Act of 1964 was designed to protect employees from “severe or pervasive” workplace harassment. The potential for employer liability differs depending on whether the “bad acting” employee is a supervisor or co-worker of the complaining party.

If the “bad acting” employee is a co-worker of the complaining employee, the employer will face liability only if it was negligent in discovering or remedying the harassment. If the “bad acting” employee is a supervisor, liability is more easily found. For wrongs by supervisors, the employer can be held “vicariously liable,” meaning the employer can be held responsible for the supervisor’s actions regardless of knowledge or corrective action.

Because of the potential for vicarious liability, it is in an employer’s best interests to minimize the employees who are classified as supervisors or at least be sure that supervisors are adequately trained. But what about the employee who may occasionally perform some tasks that could be considered supervisory? Could this person be classified as a supervisor under Title VII? This question is currently being considered by the U.S. Supreme Court in Vance v. Ball State University, which was argued in late last year.

In Vance, the Plaintiff, Meeta Vance filed suit claiming that, among others, Saundra Davis created a hostile work environment through severe and pervasive harassment. Vance worked for Ball State University as a substitute server and catering assistant. Davis worked as a catering specialist. The catering specialist job description identified “kitchen assistants and substitutes” as positions supervised by the catering specialist.

In her suit, Vance alleged that Davis was her supervisor. The Seventh Circuit Court of Appeals disagreed, finding that to be classified as a supervisor, Davis’ primary authority should include the ability to hire, fire, demote, promote, transfer, or discipline an employee. Davis did not have these powers; therefore, she was not Vance’s supervisor. Vance subsequently appealed to the U.S. Supreme Court.

Currently, courts take one of two positions regarding the definition of a supervisor under Title VII. Several courts interpret supervisor like the Seventh Circuit in Vance. Other courts, including Virginia, follow the rule that supervisor includes anyone whom the employer vests with authority to direct or oversee the complaining employee’s daily work.

The two positions taken by the courts vary widely in who could be considered a “supervisor” for purposes of Title VII. Employers should take note that some courts, particularly the federal courts in Virginia and Maryland, view the definition of “supervisor” under Title VII as including persons who have occasional authority. It is not the title or stated duties, but the actual power and authority the employee possesses. The power and authority does not have to be utilized every day, as intermittent or occasional authority may be sufficient.

This broader view of “supervisor” for employers in Virginia and Maryland means that employers should evaluate current policies and procedures for dealing with workplace harassment. Employers should ensure, at the very least, that all potential supervisors are adequately trained and that current policies take into account the possibility that some employees could be classified as “supervisors” based on the duties they perform.

In addition to the above, employers can also protect themselves from unexpected classification of employees by:

  • Comparing written job descriptions with actual tasks performed by employees.
  • Determining whether some employees are regarded as “senior” and provide direction to other employees, even though they may have the same job title.
  • Developing a workplace harassment training program that is completed by each employee annually.
  • Ensuring harassment policies are up to date and all employees are aware of their rights and responsibilities under the policies.

An employer can never completely insulate against any type of lawsuit being filed, but it can ensure that policies, procedures and training are in place to reduce the risk. Taking steps now can go a long way to prevent or minimize future turmoil.