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When is a harasser considered a “Supervisor?”

By July 19, 2013October 24th, 2018Employment Blog, Erick Becker

Erick Becker

The question of supervisory status is a critical issue that cuts across all areas of employment law.  One area where it has critical importance is discrimination cases, particularly sexual harassment, because the employer is “strictly liable” for any harassment committed by a supervisor.  In other words, if the harasser is a supervisor, the employer is on the hook even if it didn’t condone or have knowledge of the harassment.

On the federal level, courts have differed on the definition of “supervisor” in sexual harassment cases, with some holding (in agreement with the EEOC) that merely directing the work of others is sufficient, and others applying a narrower definition that requires authority to take significant employment related actions, i.e., firing, disciplining, hiring, promoting, etc.

The Supreme Court recently resolved this divergence of opinions in Vance v. Ball State University, ruling that the narrower definition should be applied in cases arising under the federal discrimination statutes.  While the decision is a victory for employers, it doesn’t provide much help for employers in California facing sexual harassment lawsuits under the state’s Fair Employment and Housing Act (FEHA).  Unlike the federal statute, FEHA includes a definition of “supervisor” that specifically references “responsibility to direct” other employees.  A “lead” or “foreman” that doesn’t have the authority to hire or fire but is given the responsibility to direct the work of other employees will likely be considered a “supervisor” in California. 

This issue highlights the importance of written job descriptions for all positions within the company.  In order to avoid having leads with limited authority classified as “supervisors,” the job description should specify that the lead only conveys or relays instructions and directives from the supervisor to the employees, and that the lead does not have the independent authority to direct the work of others.  While such evidence is not definitive, it can greatly assist in proving that the company is not strictly liable for the actions of the lead.