Legal Update: Who is the Supervisor?

Who is a supervisor? The Court isn‘t sure and is asking the U.S. Solicitor General (SG) for help. The SG provides amicus curiae briefs on issues in which the federal government has a stake, and sometimes the Court invites an analysis of a disputed legal issue. The Court invited the SG to file a brief expressing the government’s view on the definition of the term “supervisor” for the purpose of imposing vicarious liability on an employer for harassment in violation of Title VII (Vance v. Ball State Univ., U.S., No. 11-556, SG invited to file brief 2/21/12). The Seventh Circuit had ruled in this racial discrimination that the alleged harasser was a co-worker, not a supervisor. Vance is arguing that the circuits are split on the issue. Ball State acknowledges that there is a circuit split, but claims that Vance’s alleged harasser would not be a supervisor under any theory. The major alternatives are between someone with personnel action authority and someone who directs the daily work of others.

Below is a case where a panel in the Eighth Circuit split on the issue, only one of several in the case. The majority held that a “lead driver” who was in charge of a two-person long-haul trucking team did not have enough authority to be a supervisor; notably, the lead driver could not direct the subordinate driver beyond what was already established in the subordinate‘s duties and could only make recommendations to management regarding performance. The dissent pointed to considerable practical authority that the lead driver had while on the road.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.

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About Richard Tonowski

Rich joined EEOC in 2001 as a Psychologist, worked as the assistant HR director for strategic policy and planning from 2003 to 2006, and then became Chief Psychologist. In that role he reviews test validation documentation, conducts statistical analyses regarding employment practices, and consults with EEOC attorneys and investigators. Prior to his time with EEOC, he had over 20 years of experience involving public sector test development and validation, performance appraisal, employee surveys, diversity management, and labor relations. He also had experience in providing written and oral testimony as an expert witness in court cases, and in federal sector hearings conducted by EEOC and the Merit Systems Protection Board. Rich was awarded his Ph.D. in psychology by Rutgers University, and is certified as a Senior Professional in Human Resources by the credentialing affiliate of the Society for Human Resource Management. He is also an Adjunct Associate Professor of Human Resources Management and Development at University of Maryland University College where he teaches a graduate course.

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