Defining supervisor by Dara Wanzer

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The Journal Record - December 6, 2012

Dara K. Wanzer[author: Dara Wanzer]

So what exactly does it mean to be a supervisor? 

Must you have the power to hire, fire, demote, promote, transfer or discipline an employee? Or do you simply need to be vested with some ability to control another person’s work? The question that has many of the nation’s courts of appeals divided.

Early next year, the U.S. Supreme Court is expected to rule on the topic. What’s at stake for employers is an increased exposure to Title VII discrimination claims. 

Plaintiff Maetta Vance, the only African-American employee in the Ball State University banquet and catering department, filed a lawsuit against her employer, claiming she was harassed by Saundra Davis, a white co-worker. 

The U.S. Court of Appeals for the Seventh Circuit ruled Ball State was not liable to Vance because. Davis was not Vance’s supervisor. 

The case was escalated to the Supreme Court because of a split of authority on the theory of liability in harassment cases. Under the precepts articulated in two previous cases, when a hostile work environment is created by a non-supervisory colleague, an employer may be held liable only if the employee proves that that management failed to take reasonable measures to prevent and remediate harassment. But if the harasser is a supervisor, that person is a proxy for the employer, and liability is automatic. The burden then shifts to an employer to demonstrate that it exercised reasonable care to prevent and correct promptly any harassing behavior and the employee failed to avail herself of her employer’s safeguards. Supervisor liability cases are simply easier than co-worker cases to prove.

The dangers of an elastic interpretation of the term “supervisor” are obvious. With no set parameters, what does it mean to direct one’s work? 

If automatic liability is mostly an aberration, why expand its purview, particularly if the “solution” is not a solution, and if it is, is imperfect, at best? The problem of harassment is best resolved through prevention. Can expanded liability deter, remedy or even detect harassment? Arguably, it could, in many ways, deny employers an ability to adopt reasonable safeguards to prevent against harassment. 

When an employer lacks a workable understanding of the meaning of a supervisor, it correspondingly lacks the ability formulate an adequate policy reasonably tailored to prevent against harassment.

 
This article appeared in the December 6, 2012, issue of The Journal Record. It is reproduced with permission from the publisher.
© The Journal Record Publishing Co.