A Supervisor is Not Always a Supervisor

Steven Cesare, Ph.D.

An astute business owner from Delaware called me the other day to talk about his company’s performance management system (e.g., employee coaching, corrective discipline, annual reviews). During the insightful conversation, the business owner generically stated that “supervisors review crew employees’ job performance.”

Uh-oh. Steve sees a flashing red light in the land of the DuPonts!

With my curiosity immediately piqued, I inquired how the company defined “supervisor.” In this instance, a supervisor was determined to be that employee who oversees a single work crew and reports to a department Manager (e.g., Maintenance, Enhancements, Irrigation). This position, specifically entitled “supervisor,” was functionally equivalent to what many other companies refer to as a Foreman, Crew Leader, or Team Leader.

“Ay there’s the rub.”

Thanks, Mister Shakespeare.

Many companies unwittingly use the term “supervisor” casually, cavalierly, and colloquially, when in fact it has a very well-defined legal definition encompassing vast organizational liability. Words matter. Especially when they have legal impact, which parenthetically is why companies should not use words like “theft,” “grounds,” “cause,” “deliberate,” “reckless,” or “rights” in an employee handbook.

Back to the point at hand. Believe it or not, in the case of Vance v. Ball State University, the United States Supreme Court declared “that an employee is a ‘supervisor’ for purposes of vicarious liability under Title VII (of the 1964 Civil Rights Act) if he or she is empowered by the employer to take tangible actions against the victim.” Specifically, the Court noted the ability to take tangible employment actions generally involves the ability “to effect 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.”

From that definition, it is critical to note that employers are subject to vicarious liability for unlawful harassment by “supervisors.” In other words, the company can be blamed legally for any wrongdoing conducted by a “supervisor.”

To be exact: If a Foreman is actually a “supervisor,” the company may be held legally accountable for his/her unlawful actions. If not, said accountability becomes more difficult to prove.

Unbeknownst to him, the Delaware business owner may be compromising his protective legal distance, by conveying the message that Foremen, Crew Leaders, or Team Leaders (sic) are “supervisors” which may impact a significant change in subordinate employees’ employment status (i.e., conducting performance appraisals which “could” lead to firing, failing to promote, or reassignment). If the Delaware business owner willingly chooses to empower his Foremen, Crew Leaders, or Team Leaders (sic) with those supervisory responsibilities, so be it.

However, most companies in the Green Industry do not ascribe that panoply of responsibilities to those position titles. Instead, those supervisory functions are commonly reserved for the position above that level, often called Operations Manager, Maintenance Manager, Construction Manager, or Production Manager; positions which are normally trained in various “supervisory skills” (e.g., EEO, discrimination, harassment, delegation, performance appraisals, coaching, feedback, interpersonal skills, conflict resolution).

Accordingly, all relevant company documents (e.g., employee handbooks, job descriptions, personnel forms) should be reviewed to ensure that “supervisor” is properly defined and/or replaced by “Manager.”