Thursday, February 19, 2009

Defining a "Supervisor"

Harassment by a coworker is bad enough, but sometimes workplace harassment is instigated by a supervisor or someone in an employee’s supervisory chain of command. I think it’s important for African American workers to know that other employee’s may qualify as their supervisor, based on the role they play in assigning and monitoring employee workloads. Therefore, harassment by what may seem to be a coworker, may actually qualify as harassment committed by a supervisor, if that is the role the employee was serving—even temporarily. According to the EEOC:

An employer is subject to vicarious liability for unlawful harassment if the harassment was committed by a “supervisor” with immediate (or successively higher) authority over the employee. Thus it is critical to determine whether the person who engaged in unlawful harassment had supervisory authority over the complainant.

An individual who is authorized to direct another employee’s day-to-day activities qualifies as his or her supervisor even if that individual does not have authority to undertake or recommend tangible employment decisions (e.g., hiring, firing, demotion, transfer, etc.). Such an individual’s ability to commit harassment is enhanced by his or her authority to increase the employee’s workload or assign undesirable tasks, and hence it is appropriate to consider such a person a “supervisor” when determining whether the employer is vicariously liable.

An individual who is temporarily authorized to direct another employee’s daily work activities qualifies as his or her “supervisor” during that time period. Accordingly, the employer would be subject to vicarious liability if that individual commits unlawful harassment of a subordinate while serving as his or her supervisor.

Someone who merely relays other officials’ instructions regarding work assignments and reports back to those officials does not have true supervisory authority. Furthermore, someone who directs only a limited number of tasks or assignments would not qualify as a “supervisor.”

In some cases, an employer may be subject to vicarious liability for harassment by a supervisor who does not have actual authority over the employee. Such a result is appropriate if the employee reasonably believed that the harasser had such power. The employee might have such a belief because, for example, the chains of command are unclear. Alternatively, the employee might reasonably believe that a harasser with broad delegated powers has the ability to significantly influence employment decisions affecting him or her even if the harasser is outside the employee’s chain of command.



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