The Supreme Court is set to review a Seventh Circuit decision that involves a key concept under Title VII discrimination law – who is a supervisor of the employee/discrimination victim? Illegally discriminating supervisors automatically subject an employer to vicarious liability for harassing conduct, so the question is a significant one for any type of harassment case.
The Seventh Circuit takes a fairly restrictive view of who is a supervisor. Employees properly considered supervisors who have the authority to hire, fire, demote, promote, transfer, or discipline an employee. The Seventh Circuit, quite sensibly, bases its definition on whether an employee has the ability to take tangible employment action against a subordinate--such ability means the employee is considered a supervisor. The EEOC and several other circuits take a far more expansive view, considering an employee to be a supervisor when she has the authority to control daily work activities in a way that materially enables harassment. The EEOC’s definition has a significant disadvantage for employers in that there are no bright line factors involved. In fact, theoretically, in a modern workplace with shifting work responsibilities and work teams, an employee could be a supervisor one day, and a coworker the next.
The arguments for this case are set in late November. I’ll be following up from there.