Recently, in Vance v. Ball State Univ. the Supreme Court settled the issue as to who is supervisor for Title VII discrimination claims. For purposes of imputing liability on an employer under Title VII, a supervisor is someone who has the authority to take tangible employment action against the employee, e.g., hire, fire, demote, promote, transfer to positions of significantly different responsibilities, or make other changes that result in a significant change in benefits.
Before this case, in the Ellerth and Farrager cases, the Supreme Court held that employers are vicariously liable for the discriminatory conduct of its supervisors. If the supervisor’s actions resulted in a loss of a tangible employment benefit the employer is strictly liable. However, if there is no tangible employment loss, e.g., unlawful harassment only, an employer may escape liability even as to acts of a supervisor if it can show that it exercised reasonable care to prevent and correct the improper behavior, and the employee unreasonably failed to take advantage of any preventative or corrective opportunities. What the Court had not determined was who is a supervisor.
There are several noteworthy points to be gleaned from these cases. First, the scope of vicarious liability for employers is now much more limited. For example, employers are not vicariously liable for conduct of those who only make recommendations about tangible employment issues or who simply supervise daily work. That does not mean the employer may not ultimately be liable for discriminatory conduct, but it will not be liable simply because the conduct occurred. Instead, the employer will be liable if it did not act appropriately when it knew or should have known that the improper action was occurring.
Also, the definition of “supervisor” announced in Vance does not necessarily apply beyond Title VII purposes. The Court took special note of the fact that the meaning of “supervisor” under the NLRA may be different than the definition to be used in the Title VII context, largely due to the difference between the purposes of Title VII and the NLRA. Title VII addresses discrimination against employees due to personal characteristics or traits and the NLRA addresses the balance of power between labor and management.
Similarly, although not discussed by the Court, when deciding whether an employee is an exempt executive, the Wage and Hour Division of the DOL considers whether a person provides recommendations about hiring, firing, and discipline which are “given weight” by the ultimate decision maker. If so, and other DOL tests are met, the person may be exempt from overtime requirements as an “executive”—often thought of by employers as “supervisors”.
Consequently, the bright line rule announced in Vance for identifying supervisors for Title VII discrimination claims will likely not apply in every scenario; that is, an employee may be a supervisor for purposes of the NLRA or the DOL, but not for Title VII liability purposes.
For more information on this topic, please email Keith Sieczkowski or call him at (361) 886-3800.