Who's the Boss?

As the Supreme Court considers a harassment case that challenges the definition of "supervisor," experts say HR leaders would be wise to revisit discrimination and harassment policies, provide and document the appropriate training for all employees, and offer multiple, clear-cut avenues for reporting complaints.

Wednesday, January 2, 2013
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As HREOnline recently reported, the current Supreme Court docket includes a handful of cases that employers and HR leaders should be keeping their eyes on.   

Count Vance v. Ball State University among them. The Court's decision in this bias and harassment case -- expected in June 2013 -- could leave employers open to greater liability for a larger number of workers in discrimination and harassment lawsuits.

Under current law, employers are liable for a supervisor's discriminatory or harassing behavior aimed at a subordinate based on his or her race, religion, sex or age. The organization is not at fault, however, if one worker exhibits the same type of behavior toward a co-worker -- unless of course such conduct was reported and the employer failed to act upon said report.

The Vance case, however, calls into question how exactly a supervisor is defined. In her complaint, Maetta Vance, an African-American food-service worker at Ball State University in Muncie, Ind., alleges her white co-workers directed racial epithets at her, referred to connections with the Ku Klux Klan in her presence and made veiled threats of physical harm.  

Vance also claimed that Saundra Davis -- a white catering specialist whom Vance identified as her supervisor -- had slapped her and referred to her as "Sambo" and "Buckwheat."

Vance eventually filed bias and harassment charges against the university. A federal judge ruled against her, and the U.S. 7th Circuit Court of Appeals in Chicago dismissed the suit, finding that Davis -- who didn't have the authority to hire, fire, demote or discipline Vance -- didn't fit the definition of a supervisor. Hence, the university couldn't be held liable.

The highest court in the land, however, will now determine whether Davis -- who wasn't technically Vance's supervisor but did provide her with a daily list of work-related tasks -- should be considered her boss.

Whatever the Supreme Court decides is likely to "alter the legal landscape throughout the United States," as different courts rely on different tests to define what constitutes a supervisor, according to Ron Chapman Jr., a Dallas-based labor and employment attorney with Ogletree, Deakins, Nash, Smoak & Stewart.

"That means someone who is currently considered a supervisor in one part of the country would not necessarily be considered a supervisor in other parts of the country," says Chapman. "If the Court establishes a definition of supervisor that's broader than the one currently being used in a given part of the country, employers there will face enhanced liability exposure, because they will potentially be on the hook for the actions of a larger group of individuals -- those considered supervisors under the new standard."

Should the Supreme Court go that route, expect employers and HR to place more emphasis on training related to acceptable and unacceptable workplace behavior, and provide that training to a broader range of employees, he says.

"Currently, some employers train only supervisors on certain issues or have enhanced training requirements for supervisors as compared to non-supervisors. If the pool of 'supervisors' grows as a result of the Supreme Court's ruling, then that means more employees will receive the enhanced training."

Ultimately, though, a "new standard" closer to the EEOC's proposed definition of supervisor -- an individual with the authority to recommend tangible employment decisions affecting the employee or to direct the employee's daily work activities -- isn't likely to emerge from this case, he says.

"Historically, this Supreme Court has established tests based on the 'totality of the circumstances,' meaning every situation must be analyzed based on all the facts at issue. I could see the Court adopting a test that finds a person is a supervisor if he or she actually exerts significant control over an employee's terms and conditions of employment, considering all the circumstances. That is a more limited definition than what the EEOC wants."

The problem with 'totality of the circumstances' tests, however, is they "don't provide much guidance to employers that have to operate in the real world on a daily basis and make judgment calls on the spot," says Chapman Jr. At oral argument, he adds, Chief Justice Roberts "was clearly advocating for a bright line test, which would give employers greater guidance, so maybe the Court will offer employers some clear relief going forward."

Lori Adelson, a Ft. Lauderdale, Fla.-based partner with Arnstein & Lehr, and a member of the firm's labor and employment practice group, is "not inclined to venture a guess" whether the Supreme Court will ultimately agree with the EEOC's definition of supervisor.

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She does note, however, that "this Court is starting to lean toward being more expansive when it comes to employee rights. This case is concerning for employers, because if the Court does adopt the EEOC's definition, it will make employee harassment claims easier to file such that it would increase the number of employees who are considered supervisors, and companies would be susceptible to many more harassment claims under Title VII. In addition, the standard the employer must overcome will be much higher."

However the Court rules, though, the case should spur employers and HR to revisit harassment and discrimination policies, and training programs, says Adelson.

"HR policies and training are always the best defense to avoid liability for the actions of an employee with control over the daily work activities of another employee," she says. "Employers should have a policy that prohibits discrimination and harassment, and provides training to both supervisors and even employees who are not technically supervisors."

Of course, such training should be well-documented, adds Frank Chernak, partner and labor and employment attorney in the Philadelphia office of Ballard Spahr.

"Your people must acknowledge they've received the training," he says. "Document the lesson plan and the amount of time spent on training. Have employees sign off on it, and make sure they attest they are complying with your policy."

To encourage employees to step forward -- as well as to protect the organization from potential liability -- policies should make the reporting process crystal clear for all employees as well, continues Chernak.

"Oftentimes, we see policies written that just instruct employees to report harassment or discrimination to a supervisor. And, an employee says they told this or that person, and you get a case where the employer doesn't even know about a hostile work environment," he says.

"Policies should identify who exactly an employee should report to -- the director of human resources, for example. And, give employees a few avenues to report, rather than having a policy that simply encourages employees to report this type of conduct to any supervisor."


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