Retailers Want High Court to Clarify Definition of 'Supervisor'

Shannon Green

Corporate Counsel

11-01-2012

A public policy organization whose members include some of the nation's largest retailers is urging the U.S. Supreme Court to clarify the definition of "supervisor" used in harassment cases. Last Friday, the Retail Litigation Center Inc. (RLC) filed an amicus brief in support of the respondent in Maetta Vance v. Ball State University.

The Court is reviewing a Seventh Circuit finding that, for harassment purposes, a "supervisor" must have the authority to "hire, fire, promote, demote, or discipline" the employee claiming to have been harassed.

In a pair of 1998 opinions, the Supreme Court held that an employer is vicariously liable for severe or pervasive workplace harassment by a "supervisor" of the claimant. But under the so-called "supervisor liability rule" established by the Court, if an alleged harasser is a co-employee of the claimant, the employer would not be liable absent proof of negligence.

Since those rulings, a circuit split has emerged on the rule's applicability. The Second, Fourth and Ninth Circuits have held that "supervisor" applies to harassment by any employee who has the authority to "direct and oversee their claimant's daily work."

That definition is just too broad, says RLC president Deborah White. "It's a slippery slope," she says. Particularly in a retail employment setting, White says that just about any worker could feasibly fit the definition.

She hopes the Court granted certiorari in the Vance case in order to address the circuit split. The First and Eighth Circuits have adopted the same heightened standard used by the Seventh Circuit. If the Court doesn't adopt that standard, the RLC suggests that courts be required to use additional factors when making a determination as to whether the alleged harasser has the authority to meet the "supervisor" definition.

Today's work forces are diverse and collaborative, says White, and they are often governed by complex management structures. She says that when imputing liability in workplace harassment cases "a bright-line standard is the best way to offer a specific standard." The RLC argues in its brief that the Vance standard "properly describes supervisor liability in a way that realistically applies to today's businesses."

According to the RLC's brief:

By their nature, large retail stores have detailed organizational structures that allow for multiple levels of co-worker and manager positions that would benefit from a clear standard for imputed liability ... retail store employees work shifts under the supervision of various "managers on duty," but typically only the store manager has the power to hire, fire, promote, demote, transfer, and discipline.

"Retailers employ large numbers of people to serve their customers," says White. "It is unreasonable to assume that an employer should be liable for the rogue actions of one of these employees simply because the employee has some minimal supervisory role with respect to a fellow employee."

Although the retail industry is a large-scale employer, White says the issue concerns employers of all sizes. The RLC was joined in the brief by the National Federation of Independent Business (NFIB), an organization representing many of the country's small and independent businesses.

"This really isn't a big business, little business issue," says White. "It's an issue all employers share." What employers and employees alike are looking for, says White, is a clear rule they can follow.

White will be paying close attention to oral arguments in the Vance case November 26. "This determination has the potential to affect any employer/employee relationship," says White, " and that effect is magnified in the retail industry."

Shannon Green can be contacted at sgreen@alm.com.