Who Is A Supervisor Under Faragher/Ellerth? More Questions?
by Michael Fox
The 7th Circuit addresses again the question of who is a supervisor for purposes of strict liability under Faragher/Ellerth. Noting "supervisor" to be a legal term of art for Title VII purposes, it finds an employee "merely having authority to oversee aspects of another employee's job performance does not qualify as a supervisor in the Title VII context." Rhodes v. Illinois Dept. of Transportation (7th Cir. 2/26/04) [pdf].
Although agreeing that the Court had correctly applied its precedent, Judge Rovner in his concurring opinion suggested it was time the Circuit consider its position:
The standard that this circuit has established has the allure of drawing a bright line between those who have the power to make formal employment decisions and those who do not. But it excludes from the category of supervisor those employees who, although lacking final authority to hire, fire, promote, demote, or transfer the plaintiff, nonetheless enjoy substantial authority over the plaintiff’s day-to-day work life. To that extent, it is a standard that arguably does not comport with the realities of the workplace. And to the extent that employers with multiple worksites vest the managers of such sites with substantial authority and discretion to run them but reserve formal employment authority to a few individuals at central headquarters, our standard may have the practical, if unintended, effect of insulating employers from liability for harassment perpetrated by their managers.
Considering not only Judge Rovner's view, but his summary of the view from other circuits, and having responded to just such a question today, I have a feeling this is not the last that we will hear of this question.