Last year, the Supreme Court finally clarified the long open question: “Who is a Supervisor under Title VII?” As discussed in our previous post, in Vance, the Supreme Court held that a supervisor is someone who is “empowered by the employer to take tangible employment actions” against a complaining employee. Essentially, a “supervisor” – or someone who can subject an employer to vicarious liability – is someone who can hire, fire, or discipline an employee. The Vance decision was a step in the right direction for employers.
However, members of the House and Senate recently introduced legislation that would effectively overturn the Vance decision. The Fair Employment Protection Act (H.R. 4227, S. 2133) seeks to correct “the error in the Vance decision” and redefine “supervisors” more broadly as those who are “in charge of an employee’s daily work activities.” The Act’s fact sheet says this proposed definition is “consistent with years of EEOC guidance on employer liability and has been endorsed by many of the nation’s largest civil rights and labor organizations.”
Given the divided Congress, whether this bill will pass remains to be seen. We will continue to monitor and post regarding this legislation should it move forward this term.