Labor: Harassment and discrimination suits can turn on the distinction between a supervisor and a co-worker

Supreme Court to resolve circuit split by defining “supervisor” status under Title VII

Deciding who is a supervisor is an important and complex decision for an employer. Employers must ensure their designation of a particular employee as a supervisor is valid under applicable law and can be upheld in litigation. For example, an employer’s liability can raise the question of whether the harasser was the employee’s supervisor or co-worker. If the harasser was the employee’s supervisor, the employer is strictly liable for any harassment that culminates in a tangible employment action (e.g., firing, demotion, etc.). If the harasser was the employee’s co-worker, the employer is liable only if it knew or should have known about the harassment. For this reason, the supervisory status of an accused harasser is a hotly debated issue. 

It is against this backdrop that on June 25, the Supreme Court granted certiorari in Vance v. Ball State University to resolve a circuit court split over whether an employee that directs other workers’ day-to-day activities, but lacks authority to take tangible employment actions against such workers, is a supervisor under Title VII. 

Supreme Court grants certiorari despite significant objections

Vance requested the Supreme Court’s review of the 7th Circuit’s decision, arguing that the widespread circuit court split over the definition of “supervisor” required resolution. Vance noted that employers should not be permitted to avoid Title VII liability by centralizing formal supervisory authority to take tangible employment actions in a handful of supervisors detached from employees’ day-to-day work activities.

Contributing Author

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David Ritter

David B. Ritter is partner and chair of the Labor & Employment practice at Neal, Gerber & Eisenberg LLP, representing management in all areas of...

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