WASHINGTON (PAI) – Federal anti-discrimination law bans firms from racial or sexual discrimination and harassment on the job, and says supervisors, as agents of firms, must not discriminate or harass – or stop it when it occurs.

But who’s a supervisor? The Supreme Court tackled that question in late 2012. .

The answer will be important for workers nationwide. If a supervisor is someone with power over many aspects of a worker’s job, not just hiring, firing and discipline, then workers have much more leeway to complain and sue about harassment and discrimination. Most courts agree with that broader definition of a supervisor.

But in a case involving Ball State University, in Muncie, Ind., the federal appeals court in Chicago narrowed that to defining a supervisor as someone who could hire, fire or discipline a worker – and no more. The Chamber of Commerce supports Ball State.

The hurt worker, Maetta Vance, who toiled in Ball State’s catering/events department, took her complaint to the justices.

“There is a difference between those supervisors who take direct activity, tangible direct actions, who are in power to do that, and supervisors who don’t have that power,” Justice Sonia Sotomayor told Vance’s attorney, Daniel Ortiz. “The whole fight is in part about that issue,” Ortiz replied.

“It seems to me that every single case has its own peculiar facts, and courts are going to have to figure out where on the continuum it resides,” Chief Justice John Roberts later told the U.S. government’s attorney, Sri Srinivasan.

“The competing approach would be the approach adopted by the 7th Circuit,” the Chicago appellate court, Srinivasan said. “But that approach has some serious flaws… I think control over daily work activities is where we would draw the line. And that’s what has come up the most in the cases” of discrimination and harassment that the federal government and the courts handle, Srinivasan told Roberts.

Attorney Gregory Garre, representing Ball State, was on the verge of admitting that past Supreme Court rulings did not limit who is a supervisor to those who can hire and fire. Then Roberts cut off his answer.

“The logic of the court’s precedents…would lead to the conclusion that someone who does control virtually all aspects of one’s schedule but yet lacks the authority to hire, fire, or demote, nevertheless still would be qualified as someone who –,” Garre said. “Every time you adopt a rule rather than a multifactor analysis, there are going to be particular cases that fall outside the rule,” Roberts said, jumping in.

Justice Samuel Alito asked Garre: “What kind of opinion that you’re suggesting we write really provide? The guidance would be that if someone has no authority to assign daily work, and also has no authority to hire, fire, promote, et cetera, then that person isn’t a supervisor. How much guidance is that?

“I think it’s a lot of guidance,” Garre replied. “The flip side is the court would make clear that merely having some occasional or marginal authority to lead or direct by virtue of one’s better paper title or seniority is not sufficient” to call someone a supervisor responsible for preventing on-the-job harassment and discrimination.

That stand by Ball State and employers in general “produces truly perverse results,” Ortiz retorted later. “Someone who can tell you what to do in your job day-to-day, manage you during the whole job period, what kind of tasks you have to do, was not necessarily considered a supervisor, while the person upstairs in human resources that you may never see or even know would be considered your supervisor.”

His reply opened the way for an alternative floated by Justice Anthony Kennedy, now the court’s “swing vote” in controversial cases: Cut down the definition of who’s a supervisor – and load more responsibility on the company. “If you adopted that rule, I suppose you could couple it with an increased duty of care on the part of the employer to take necessary steps to prevent forbidden harassment,” Kennedy told Ortiz.


Mark Gruenberg
Mark Gruenberg

Award-winning journalist Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of the union news service Press Associates Inc. (PAI). Known for his reporting skills, sharp wit, and voluminous knowledge of history, Mark is a compassionate interviewer but a holy terror when going after big corporations and their billionaire owners. El galardonado periodista Mark Gruenberg es el director de la oficina de People's World en Washington, D.C. También es editor del servicio de noticias sindicales Press Associates Inc. (PAI).