Narrowing the Definition of "Supervisor": What it Means for California Employees Alleging Workplace Harassment

By Adams, Nye, Becht LLP
on August 1, 2013

business-concepts-people-9-1193410-m.jpgIn the midst of the U.S. Supreme Court's ruling regarding same-sex marriage, a couple of major employment law decisions went under the radar. One of the decisions that will matter to employees outside of California is Vance v. Ball State University, which will now allow many harassers with responsibilities to oversee an employee's daily activities to escape liability against employees' claims of workplace harassment, like racial harassment.

Basically, supervisors have greater degrees of liability for their acts of harassment than co-workers. The Supreme Court, in a 5-4 decision, however, said that for purposes of determining workplace harassment liability, a supervisor must have the power to take a tangible employment action against an aggrieved employee. What is a tangible employment action? Generally, it is defined as a significant change in job status. So if the supervisor has the power to fire, transfer, demote, or reassign different job responsibilities, that supervisor will be held responsible for his or her harassment of the subordinate.

Prior to the decision, federal courts have defined a "supervisor" by following the guidelines issued by the Equal Employment Opportunity Commission (EEOC). According to the EEOC, an employee is a supervisor if (1) they have the power to take tangible employment actions or (2) were authorized to control or undertake the employee's daily activities. However, the second condition for "supervisor" was removed by the Supreme Court in Vance.

Does it matter for California employees? Only to the extent California employees will be bringing a lawsuit under Title VII instead of the broader protections afforded by California's Fair Employment and Housing Act (FEHA). So for all intensive purposes, no it will not impact California employees since the definition of supervisor in California under FEHA remains unchanged. FEHA's Government Code ยง 12926(s) defines "supervisor" as "any individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment."

The definition chosen by the Vance court is clearly narrower than the FEHA definition. Why? First, it excludes those supervisors who have the responsibility to direct the work of their peers from the definition of "supervisor." Second, adopting a narrow definition as in the Vance case would allow many harassers to slip out of liability since many direct line supervisors do not have the power to hire or fire even if they still control many aspects of a subordinate's job duties.

A factor that may have played in the majority's ruling is that in Vance the white employee did not have the power to "hire, fire, demote, promote, transfer, or discipline" Vance, though Vance did list the white employee as her "supervisor" in her complaint. And even though both the majority and dissent acknowledge that Vance would have lost on her action even under the EEOC definition, the EEOC definition meets the objectives of Title VII in preventing workplace harassment as it emphasizes the importance of particular workplace relationships and circumstances in evaluating who is a supervisor.

Most significantly, the Vance decision leaves open the question of what the scope of decision making authority should be for someone who is not formally an employee in order to be deemed a supervisor. Also, if an employee were reassigned, how significantly different must those responsibilities be for the harassing employee to be deemed a supervisor. Even defendant BSU agreed with Vance in its amicus curiae that the tangible employment test employed by the majority doesn't capture all employees who may be supervisors.

For the minority of cases brought in California under Title VII, the Supreme Court's ruling does make it more difficult for employees to claim workplace harassment when the harassment is by a supervisor who would otherwise be deemed liable under the EEOC and FEHA's definitions of supervisor. Because the new federal definition under Title VII differs substantially from the standard in FEHA, California law dictates that the new federal standard should be disregarded. So in California the definition of "supervisor" remains intact and really should not have much of an impact except for cases brought under Title VII, instead of FEHA.