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Who are supervisors, for the purposes of discrimination?


When harassment and discrimination occur in the workplace, it is not always easy to pinpoint who should be held accountable for the illegal behavior. In most cases, it is against the law for employers, not individual non-supervisory employees, to engage in workplace discrimination. However, it can be difficult to determine who an "employer" or who a "supervisor" actually is in a complex business situation.

In October, the United States Supreme Court will hear a case of alleged racial discrimination in the workplace. The focus of the Court's query however, will not be whether discrimination occurred, but who can be considered a supervisor for the purposes of liability.

If an individual is considered to be in a supervisory position over another employee, it is generally easier to hold him/her and the company liable for employment-related discriminatory behavior. However, if a person is considered simply a fellow employee, one must establish certain knowledge or responsibility on the employer's part in order to hold the business liable for the fellow employee's unacceptable behavior.

The Court will consider whether to uphold or overturn the 7th U.S. Circuit Court of Appeals earlier ruling in the case. Specifically, the 7th Circuit held that the co-worker who behaved unacceptably towards the plaintiff was not a supervisor, as a supervisor must have the authority to "directly affect the terms and conditions" of the plaintiff's employment. In this case, the court ruled that the discriminatory party did not have such authority.

The idea that one employee must "directly affect the terms and conditions" of another's work to be considered a supervisor is quite a broad one. Hopefully the Supreme Court will hold that workers are broadly protected from the behavior of their work colleagues rather than narrowly shielded.

Source: Bloomberg Businessweek, "Supreme Court to Review Rules for Supervisor in Job-Bias Suits," Bob Drummond, June 25, 2012

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