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“Who?…Me?” Liability of a Supervisor In Discrimination Suits

Title VII of the Civil Rights Act of 1964 is the federal law which governs discrimination in the workplace. The law protects individual against discrimination or harassment from other employees, third parties or their supervisors based on race gender, ethnicity, religion and other protected classes or characteristics.

Under Title VII, if a co-worker harasses an employee, the employer can only be found liable if the employer knows about the harassment and then fails to control the working conditions. Thus, for the employer to be liable, the employer must either fail to provide a reasonable avenue for complaint or fail to take corrective actions upon discovering the harassment. If however, an employee is harassed by a supervisor, the employer is found automatically liable if the harassment leads to an adverse employment action such as, firing or failing to promote. If there is no tangible adverse employment action, and the employee is alleging hostile work environment due to the supervisor’s conduct, then the employer will be found liable unless the employer takes action to prevent or correct the supervisor’s behavior; or unless the employer has a policy in place to prevent or correct such behavior, including conducting training of their supervisory staff on how to handle complaints, and the employee fails to take advantage of the policy or procedures. It is the employer’s burden to prove that it took these steps.

There has been some ambiguity in the past on who is a “supervisor”, which can be of major significance to an employer. A recently issued Supreme Court decision in the case of Vance v. Ball State University clarifies this long standing question in Title VII cases. The definition of supervisor that was commonly used in New York courts was an individual that has “significant direction over the victim’s daily work.” This definition has proved troublesome and open-ended.

Now the Supreme Court has adopted a much narrower definition of “supervisor”. Under the Supreme Court decision “an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered the employee to take tangible employment actions against the victim.” The decision provides an employer with a far clearer definition. This puts companies on notice that a “supervisor” is anyone who can effect 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 the employee’s benefits. Employers should thus take this into account where there have been complaints of harassment or discrimination in the workplace, as additional actions may be required where the harasser is a supervisor.

Employers need to be aware of how supervisors handle claims in the workplace and how the employee is treated after bringing the claim or it could lead to claims of retaliation. Although the employee bringing the charge may not be able to prove the original harassment claim, they can more easily prove that they were retaliated against for bringing the complaint to light. Retaliation charges have increased substantially in recent years and have generated large settlements for plaintiffs.

Employers need to diminish their exposure by doing three important things: 1. Have an updated handbook that contains a strong anti-harassment/anti-discrimination policy indicating three people that the employee can bring a complaint to; 2. Post the company’s harassment policy on all bulletin boards and regularly re-issue the policy and have employees sign-off on it; 3. Train your supervisors on how to recognize harassment and discrimination in the workplace, how to handle it and how to avoid possible retaliation charges.

Of course, if such a situation arises you should always contact your HR professional or legal counsel immediately.

********** This article is intended for general information only and should not be construed as legal advice.


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