“New Supreme Court Ruling: Who is a “Supervisor” in Harassment Cases?”

Who is considered a “supervisor” can often determine liability in both workers’ compensation claims and in sexual harassment cases, although the standard of who is a “supervisor” is different.

In sexual harassment situations, any sexual harassment claims defense lawyer understands that there are different liability standards depending on whether the accused harasser is a co-worker or a supervisor. The U.S. Supreme Court issued Vance v. Ball State University on June 24, 2013, establishing a bright line test for who is a “supervisor” in cases brought under Title VII.

A. Supervisors in Workers’ Compensation Claims.

In workers’ compensation claims, who qualifies as a supervisor or “superior” most frequently arises where lack of notice of the claim is raised as a defense. O.C.G.A. §34-9-80 provides that every injured employee or his representative shall, immediately on the occurrence of any accident or as soon thereafter as practicable, give or cause to be given to the employer…  “or the immediate superior of the injured employee” a notice of the accident.  If notice requirements are not met, and unless certain exceptions apply, no compensation shall be payable.

The Georgia Court of Appeals has found notice where a claimant gave notice of an injury to a crew leader who was neither a foreman or an immediate superior to the claimant.  The crew leader was not a “supervisor” and held no disciplinary authority, but did receive a higher hourly wage than the claimant and did have responsibility for assigning tools to employees, keeping the production line moving, and directing his crew per his own supervisor’s instructions. An experienced defense attorney for sexual harassment cases can help your company determine whether such a standard could be applied, and how to properly safeguard against non-supervisory employees being deemed supervisors should a sexual harassment lawsuit occur.

B. Supervisors in Sexual Harassment Claims.

In sexual harassment situations there are different liability standards depending on whether the accused harasser is a co-worker or a supervisor.  In 1988, the Supreme Court issued two cases [Ellerth and Farragher], setting the rules for liability: (i) where a co-worker creates the hostile environment, the employer can be liable only if it knew or reasonably should have known about the harassment and failed to stop it; (ii) where a supervisor is the harasser and the employee suffers a tangible adverse employment action, the employer will be strictly liable; and, (iii) in cases where a supervisor is the harasser but no tangible adverse employment action occurred, there is no strict liability for the employer.

In this situation, an employer can escape liability if it can prove it exercised reasonable care to prevent and correct harassing behavior, and the employee unreasonably failed to avoid harm by not reporting the harassment. An experienced sexual harassment claims defense lawyer can guide an employer through an internal investigation to help determine whether this threshold can be met.

The new Vance ruling sets a bright line test in harassment cases for who will qualify as a supervisor that is more narrow than the workers’ compensation standard, which means that a sexual harassment claims defense lawyer must be more mindful of this new criteria during discovery and trial or settlement negotiations.

An employer may be strictly liable only for the actions of a “supervisor” who can impose a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, a decision causing a significant change in benefits.”

A seasoned defense attorney for sexual harassment cases can help companies make this determination and codify the roles of supervisors by reviewing job descriptions, organizational charts and other internal processes and procedures.

C. Conclusion.

In order to avoid strict liability in the harassment context, employers as well as sexual harassment claims defense lawyers should re-examine the job titles for “supervisors” and clarify who has power to hire, fire, etc. Make sure that non-supervisors are not signing disciplinary paperwork or serving in a supervisory capacity, etc.

It will also help to clearly inform employees who experience a significant change in employment status the exact identity of the supervisor(s) who made each such decision. This will clarify that the employee can no longer identify his/her “lead person” or the most senior worker on the shift in a department as a “supervisor” for purposes of the three tests for liability.

If your business has encountered these issues or needs to review current policies and procedures, a knowledgeable defense attorney for sexual harassment cases from Hall Booth Smith P.C.’s Labor and Employment Team can help guide you through best practices that minimize risk on these and many other employment law issues.