What Is a Supervisor? The Supreme Court Will Tell Us Next Year

By Eric B. Meyer

Nah, brotha. This isn’t Jeopardy. “What is a supervisor” is a question that the United States Supreme Court has decided to answer.

Meyer, what are you talking about? Who cares? Well, you should…

The Supreme Court has twice held (here and here) that, under Title VII, an employer is vicariously liable for workplace harassment by a supervisor. What the Supreme Court has yet to clarify, however, is just who is a “supervisor” for purposes of Title VII.

Guidance should come next year

In Vance v. Ball State University, the Seventh U.S. Circuit Court of Appeals in Chicago joined the First Circuit and the Eighth Circuits in opining that a Title VII “supervisor” must do more than direct and oversee the victim’s daily work. Rather, the supervisor must also have the power to take formal employment actions against victim.

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Prior to Vance, the Second, Fourth, and Ninth Circuits had held, the “supervisor” liability rule applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work. Meanwhile, in my backyard, the Third U.S. Circuit Court of Appeals in Philadelphia has fashioned it’s own two-part test to determine who is a supervisor.

So, here cometh the Supreme Court to answer the question. We’ll get some guidance next year.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


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