Seeking Supervision: an Analysis of Recent Trends in the Definition of 'supervisor' Argument and a Recommendation for the Eleventh Circuit
| Citation | Vol. 22 No. 2 |
| Publication year | 2010 |
Georgia State University Law Review
Article 1
12-1-2005
Seeking Supervision: An Analysis of Recent Trends in the Definition of'Supervisor' Agument and a Recommendation for the Eleventh Circuit
Keith Muse
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Recommended Citation
Muse, Keith (2005) "Seeking Supervision: An Analysis of Recent Trends in the Definition of 'Supervisor' Argument and a Recommendation for the Eleventh Circuit," Georgia State University Law Review: Vol. 22: Iss. 2, Article 1. Available at: http://digitalarchive.gsu.edu/gsulr/vol22/iss2/1
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SEEKING SUPERVISION: AN ANALYSIS OF RECENT TRENDS IN THE DEFINITION OF 'SUPERVISOR' ARGUMENT AND A RECOMMENDATION FOR THE ELEVENTH CIRCUIT
Introduction
Donna Rhodes worked for the Illinois Department of Transportation as a highway maintenance worker from 1996 until 1999.1 Ms. Rhodes worked at a maintenance yard under two men who had the authority to assign her tasks and recommend disciplinary action.2 Rhodes claimed that during the three years she worked at the yard, one of the two men confronted her numerous times and made lewd sexual remarks directed towards her.3 Rhodes also alleged that the men made decisions affecting her daily schedule that she claimed amounted to sexual harassment.4 Even though the men represented the only onsite authority at the maintenance yard, and they had the power to recommend disciplinary actions be taken against Ms. Rhodes, the Seventh Circuit Court of Appeals determined that the two men did not qualify as "supervisors" for Title VII sexual harassment purposes because they did not have the power to "hire, fire, transfer, promote, demote, or discipline" Ms. Rhodes.5
While the Seventh Circuit Court of Appeals determined that the two men did not qualify as supervisors, the Second Circuit Court of Appeals likely would have decided the issue differently.6 The Second Circuit identifies a supervisor as one who has the ability to take or recommend tangible employment actions against an employee or has
1. Rhodes v. El. Dep't of Transp., 359 F.3d 498,501 (7th Cir. 2004).
2. Id. at 502.
3. Id.
4. Id.
5. Id. at 502,506.
6. See generally Mack v. Otis Elevator Co., 326 F.3d 116, 127 (2nd Cir. 2003) (adopting the EEOC's stance that a supervisor is one who has the ability to undertake or recommend a decision to hire, fire, promote, demote, discipline, or direct the employee's daily activities).
491
control over an employee's daily activities.7 Since Ms. Rhodes could have argued that these men had the ability both to recommend that she be disciplined and to control her daily activities, the Second Circuit would have held the company to a higher liability standard.8 These two approaches are the centerpieces in the debate over how to determine who is a supervisor for Title VII harassment purposes.9
This debate developed after the Supreme Court established a framework for imposing vicarious liability upon employers for the actions of their supervisors in Title VII harassment cases.10 The Court, however, has failed to elaborate on who qualifies as a supervisor, and lower courts have struggled when addressing this issue.11 One expert recently referred to the approach taken by the Seventh Circuit Court of Appeals as the "narrow view" and described the approach adopted by the Second Circuit Court of Appeals and the Equal Employment Opportunity Commission (EEOC) as the "broader view."12
This Note will address recent cases and trends that represent or affect the split between the courts on how to determine who is a supervisor for Title VII harassment claims.13 This Note will also address an alternative interpretation of the narrow view, which may provide a compromise approach for courts.14 Lastly, this Note will provide a recommendation for the Eleventh Circuit Court of Appeals.15
7. Id. at 127.
8. See Browne v. Signal Mountain Nursery, LP., 286 F. Supp. 2d 904, 910 (E.D. Term. 2003) (stating that if the alleged harasser is a coworker the plaintiff must show that the employer knew or should have known of the harassment, but if the harasser is a supervisor, then the employer is subject to vicarious liability).
9. Eric Matusewitch, Courts Split On Definition of 'Supervisor' In Sexual Harassment Cases, 18 Emp. Litig. Rep. (Andrews) 12 (July 20, 2004).
10. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998); see also Faragher v. City of Boca Raton, 524 U.S. 775, 777-78 (1998).
11. See Browne, 286 F. Supp. 2d. at 912.
12. Matusewitch, supra note 9.
13. See infra Parts I-V.
14. See infra Parts D.A and VI.
15. See infra Parts VI-VII.
2005] DEFINITION OF 'SUPERVISOR' 493
Part I of this Note will discuss the vicarious liability framework that the Supreme Court articulated in Ellerth and Faragher.16 Part II will examine the decisions of those courts that have purportedly subscribed to a narrower definition of supervisor.17 Part HI will analyze both the benefits and questions surrounding the "broader
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view" of supervisor. Part IV examines the logic and arguments that may arise out of the Supreme Court's recent decision that analyzed whether an employer is liable when a supervisor causes an employee to be constructively discharged.19 Part V will examine the limited case law covering the supervisor issue by courts within the Eleventh Circuit.20 Finally, Part VI will examine the changing face of the workplace and will also discuss which approach best suits a society moving towards a team-oriented corporate structure.21
I. Ellerth and Faragher: Changing the Landscape of
Harassment Claims
Until 1998, courts generally held employers vicariously liable for discrimination that resulted in a change in an employee's terms or conditions of employment. Courts distinguished these quid pro quo cases, in which an employer carried out a threat of change in the conditions of employment, from hostile environment cases involving "severe or pervasive" treatment of the employee, but where the employer did not change the employment conditions.23 But the Supreme Court decided in 1998 that the issue of vicarious liability should no longer be strictly tied to the question of whether the case could be labeled quid pro quo or hostile environment24 Instead, the Court developed a new framework for holding employers liable for
16. See infra Part I.
17. See infra Part II.
18. See infra Part HI.
19. See infra Part IV.
20. See infra Part V.
21. See infra Part VI.
22. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,752 (1998).
23. Id. at 752-54.
24. Id. at 754.
the actions of supervisors. This section will analyze the Court's reasoning and then examine the importance of the supervisor definition in light of the Court's decisions.26
A. Ellerth and Faragher: Establishing the New Vicarious Liability Framework
In 1998, the Supreme Court analyzed whether an employer could be vicariously liable for the actions of a supervisor in a Tide VII harassment case. Specifically, the Court faced the issue of what standard of liability an employer should face in cases where a supervisor harasses an employee but no tangible employment action is taken against the employee.28
In Ellerth, the employee suffered from "repeated boorish and offensive remarks and gestures" made by her supervisor.29 Although the employee claimed she resigned her position due to the remarks, the Court distinguished her case from cases where a supervisor had taken a tangible employment action.30 The Court defined a tangible employment action as any action that "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." In those cases where a supervisor takes a tangible employment action, the employer should be vicariously liable for the actions of the supervisor.
In drawing this conclusion, the Court looked to the rules of agency for direction.33 Specifically, the Court pointed to section 219(2)(d) of the Restatement of Agency, which states that an employer is not liable for the actions of his employees unless "the servant purported to act or to speak on behalf of the principle and there was reliance upon
25. Id. at 754-55.
26. See infra Part LA.
27. Ellerth, 524 U.S. at 746^7; Faragher v. City of Boca Raton, 524 U.S. 775,780 (1998).
28. Ellerth, 524 U.S. at 747.
29. Id.
30. Id. at 748, 751-52, 766.
31. Id. at 761.
32. Id. at 762-63.
33. See id. at 758,760.
2005] DEFINITION OF 'SUPERVISOR' 495
apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation."34 The Court stated that it is clear when a supervisor takes a tangible employment action the employment relationship aids the supervisor, so the employer should be held vicariously liable.35
A more vexing issue arises when asking whether an employer should be held liable when a supervisor harasses an employee, but the supervisor does not take a tangible employment action against the employee. In Ellerth, the Court stated that a supervisor's conduct had a more threatening character because of the agency relationship but refused to impart vicarious liability for all acts of a supervisor. Instead, the Court decided to pursue a rule encouraging employers to create policies and procedures that would help eliminate sexual harassment in the workplace.38
The Court held that "[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible...
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