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WHO IS YOUR SUPERVISOR UNDER THE LAW?

Vance v. Ball State UniversityWho is a supervisor?  Why is this important?Title VII of the Civil Rights Act imposes liability upon an employer for the actions of a supervisor.  This means it is particularly important to define who is a supervisor, i.e. whose actions can make the company responsible to pay the judgment in a discrimination lawsuit.   Our courts believe that an employee is less likely to challenge the discriminatory actions of a supervisor for fear of losing his or her job.  The courts will not hold the employer liable for the actions of a peer unless the employer was negligent in not having appropriate workplace anti-discrimination/anti-retaliation training.The U.S. Supreme Court has attempted to clarify this issue on several occasions and is once again charged with the task of defining who fits the bill of a supervisory employee.  In Vance v. Ball State University, the Seventh Circuit Court of Appeals held that a supervisor must have the authority to hire, fire, transfer, demote or otherwise discipline the employee, finding that the employee who perpetrated the racial facts did not fit this bill.  Other circuits have held that an employee who directs the plaintiff’s day-to-day activities may also be considered a supervisor.Ms. Vance worked in dining services at Ball State University, in Muncie, Indiana.  She was the only African American employee in that department.  She states that her co-workers harassed her with racial epithets and used threatening words and actions.  She further states that someone she considered to be her supervisor accosted her, slapped her, used racial slurs and made references to the KKK.Ms. Vance complained to her employer and they took steps to investigate and inform the department that racially offensive behavior would not be tolerated in the work place.Ms. Vance filed suit against the University alleging racial discrimination and retaliation.  The Federal District Court and the Seventh Circuit Court of Appeals found that Vance had not proved a case of racial discrimination or retaliation because the employee who performed the discriminatory acts only directed her day-to-day activities but didn’t have the right to hire/fire/promote/demote etc.The case is now before the U.S. Supreme Court awaiting a ruling on what type of employee will qualify as a supervisor to impose liability upon the employer.What do you think?  Should Ball State be held responsible for the actions of one of its employees?  Do you think that an employee who only directs day-to-day activities should be considered a supervisor?Lessons Learned for the Employer:An employer should be able to demonstrate that its employees are required to attend sensitivity training in the normal course and not just in response to an employee complaint.  An employer should also have a clearly defined complaint structure that affords the employee an avenue to raise her concerns without retribution from the supervisory employee.  In consideration of the rising tide of retaliation claims, the employer must also be vigilant about retaliation training and ensuring that the employee does not suffer any adverse employment action following her complaint to HR.Lessons Learned for the Employee:Make sure you document your complaints regarding how you are being treated in the workplace as well as how you are being treated following your complaint.  Make sure you follow employer’s procedure in making your complaint and alerting HR to the negative treatment.  Keep copies of everything you have given HR, including all communications and keeps notes of all discussions with the employer.  If the situation doesn’t improve or you suffer some adverse employment action such as a termination, reassignment or demotion, contact an attorney immediately.  You have a limited amount of time within which to bring your claims against the employer.

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