Supreme Court Defines "Supervisor"

SUPREME COURT DEFINES “SUPERVISOR” – AN IMPORTANT VICTORY FOR EMPLOYERS, BUT WITH A SIGNIFICANT PROVISO.
On June 24, 2013, employers dodged a bullet.  Here is what happened, and what employers need to do about it.
First, some history …  In 1998, the Supreme Court issued two decisions that changed the nature of employment law: it ruled that employers would be “strictly liable” – that is, employers would have no defenses – if a “supervisor” harassed or discriminated against an employee in a way that tangibly affected the employee’s hiring, firing, pay, benefits or other terms and conditions of employment.  No matter how many times the employer told the supervisor not to do it, if it happened, the employer had to pay the tab.  Period.
Since those decisions, the term “supervisor” has been understood to cover only those persons who have the right to determine an employee’s terms and conditions of employment — the right to hire, fire, discipline, determine pay, determine assignments, and so on.  But a recent case challenged that definition, and contended that the term “supervisor” should also cover employees who might not have that level of authority, but who direct and supervise the work of other employees.  Many companies assign more experienced or qualified employees the task of providing this kind of supervision, without giving them additional managerial authority – titles like “line supervisor” or “lead foreman” often encompass that kind of role.
The stakes were significant:  if the “supervisor” definition were expanded in this way, the potential for “strict liability” for “supervisor” harassment and discrimination would expand dramatically.
On June 24, 2013, in a 5-4 decision, the Supreme Court refused to expand the definition of “supervisor.”  The line remains where it was:  in order to be a “supervisor,” an employee has to have the right to take significant and tangible employment actions against other employees – something much more than just the right to direct the performance of work.
But the Supreme Court added a proviso, and stressed that employees who suffer harassment or discrimination at the hands of any fellow employee still have substantial rights to seek damages from their employer.  The key:  if an employee can show that an employer was negligent in allowing the harassment or discrimination to occur or continue, then the employer will be held liable, whether or not the offender is a supervisor.
The implication of the decision is clear.  Employers must utilize methods that will diminish the likelihood of unlawful conduct by both supervisory and non-supervisory personnel:  the right kinds of policies and procedures, properly implemented and policed, coupled with the right kind of training.
 
[author] [author_image timthumb=’on’]https://meainfo.org/app/uploads/2014/10/michael-trachtman.jpg[/author_image] [author_info]Michael G. TrachtmanBusiness Attorney and MEA General CounselPowell Trachtman Logan Carrle & Lombardo P.C.[/author_info] [/author]