You Are Not the Boss of Me

The U.S. Supreme Court issued two important employment-law decisions this week and, surprising to many of us, both came out in favor of employers. Both cases will have significant impact on employment lawsuits but one of the two is of of particular interest to me because it has been an issue I’ve faced in prior cases of my own.

In Vance v. Ball State University, the Supreme Court was asked to decide what it means to be an employee’s “supervisor” for purposes of Title VII.  In short, the Court held that an individual can be considered to be a supervisor only if he or she has been empowered by the employer to take “tangible employment action” against the employee who claims to have been harassed. 

And what, exactly, is a “tangible employment action,” you ask?  Basically, it means the power to effectuate significant change in the victim’s employment status.  So the power to hire, fire, demote, etc., is the power to effectuate a tangible employment action.  If the individual does not have the authority to fire, transfer, or demote the victim, then the individual is not considered to be the victim’s supervisor.

Now, why does this matter?  In harassment cases, the law provides for an affirmative defense in certain cases.  By “affirmative defense,” I mean that, even if harassment did occur, the employer still will not be held liable if the defense is found to apply.  Which means that the affirmative defense is absolutely critical for an employer facing a harassment claim.

But the defense does have its limits. And one of them is when a supervisor is the alleged harasser.  If the employee was harassed by a supervisor and the harassment resulted in a tangible employment action, then the defense is not available.  So, in any case involving allegations of unlawful harassment, the employer will want to show that the alleged harasser was not the victim’s supervisor.

And that’s why the definition of a “supervisor” is so important. Prior to the Vance decision, the employee is free to argue that the individual was his or her supervisor based on any number of factors.  I had a case in which the plaintiff-employee claimed that the alleged harasser was her supervisor.  The employer disputed this, contending that the individual did not have the power to hire, fire, demote, or otherwise take any tangible employment action against the employee.  In response, the employee argued that the individual trained the employee.

Without the precedent to support our argument on what defines a supervisor, we were left only with “common-sense” arguments.  And, maybe it’s just me but “common sense” doesn’t get me very far with the court on most days.  Generally speaking, judges prefer to see a legal citation at the end of the sentence instead of a footnote that says, “Well, obviously.”

So although I do think that the Court’s opinion is one that derives a great deal of its holding from common sense, I am no less excited about it. 

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