When a Supervisor is No Longer a Supervisor

With another blow to employee rights, the Supreme Court recently issued a decision in Vance that will demonstrably hurt plaintiffs from filing sustainable employment discrimination suits under Title VII. The Supreme Court decided to put their own spin on how the term “supervisor” is defined in the context of Title VII, severely limiting and burdening potential employees from holding their employers responsible for the discriminatory actions of a superior.

The Supreme Court concluded that a “supervisor” is now someone whom the employer has empowered to take “tangible employment action” against the aggrieved employee. Referring to prior decisions in the Seventh Circuit, the Court described a tangible employment action as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” The Court rejected the alternate and clearly fairer interpretation of supervisor, a superior who directs another employee’s work tasks.

By narrowing the definition of “supervisor,” the Supreme Court has now created a loophole for employers to curtail their exposure to liability. A supervisor’s harassment that does not result in a tangible employment action could result in the vicarious liability of the employer if they could not establish an affirmative defense, such as (1) the exercise of reasonable care to prevent and promptly correct harassing behavior, or (2) if the complainant unreasonably fails to take advantage of preventative or corrective measures made available to her.

In contrast, if the harassing employee is a co-worker, a negligence standard applies. To satisfy that standard, the employee must show that the employer knew or should have known of the offensive conduct, but failed to take appropriate corrective action – a much steeper burden. The Supreme Court is denying a generally accepted definition of supervisor, someone who has the ability to direct and affect a subordinate’s terms of employment. Simply because a superior cannot fire, demote, or transfer, does not mean they cannot alter the terms of  employment, thereby creating a discrimination polluted workplace where an employee would likely not feel comfortable to report claims of harassment without fear of retribution. Vance is a truly sad decision.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.

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