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Fifth Circuit Provides Guidance on Who is a "Supervisor" Under Title VII of Civil Rights Act

  • April 29, 2009

The U.S. Court of Appeals in New Orleans has held that to be considered a “supervisor” under Title VII of the Civil Rights Act a co-worker must have the power to directly affect the terms and conditions of the plaintiff’s employment (such as the authority to discipline or evaluate performance).  Wooten v. Federal Express Corp., No. 07-10555 (5th Cir. April 7, 2009).  Whether a co-employee is a supervisor is significant in Title VII litigation because an employer may be strictly liable for a hostile work environment created by a supervisor when the conduct culminates in a tangible employment action, such as discharge or demotion. 

This is consistent with the majority of appellate courts that have addressed supervisor status under Title VII.  See, e.g., Joens v. John Morrell & Co., 354 F.3d 938, 940 (8th Cir. 2004) (“[T]o be a supervisor, the alleged harasser must have had the power…to take tangible employment action against the victim, such as the authority to hire, fire, promote, or reassign to significantly different duties.”).  See also Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir. 2002); Mikels v. City of Durham, 183 F.3d 323, 333-34 (4th Cir. 1999).

In Wooten, a married, interracial couple filed suit against their employer for, among other things, a racially hostile work environment.  The district court granted summary judgment to the employer on the hostile work environment claims and the plaintiffs appealed.  Viewing the evidence in the light most favorable to the plaintiffs, the appellate panel summarized their allegations as involving “frequent inappropriate comments” by a number of co-workers in addition to “oppressive actions of [a co-employee] regarding work assignments.” 

The plaintiffs asserted on appeal that the district court erred in holding that one of their co-workers was not a supervisor for purposes of Title VII because he had “authority…to assign the [plaintiffs’] deliveries and make decisions regarding their workload.”  The Fifth Circuit court rejected this argument and concluded that the plaintiffs’ co-employee was not a supervisor under Title VII because there were substantial limits to the co-worker’s authority.  In particular, the court cited the deposition testimony of one of the named plaintiffs, which conceded that the alleged supervisor “had no power to discipline her or evaluate her performance.” 

The court also found it significant that “numerous other supervisors” were involved in managing the plaintiffs’ employment, stating, “Not all exercise of authority leads to an inference of a supervisory relationship, particularly when close monitoring is close at hand from other direct supervisors and managers.”  The Wooten court summarized its holding by remarking, “Some interdependence and inequality in authority among employees in a corporate enterprise is inevitable:  not all dependence amounts to a legally sufficient ‘supervisor’ relationship.”  

In the past, at least one district court had observed that “there is no controlling authority in the Fifth Circuit regarding the definition of ‘supervisor.’”  EEOC v. Laroy Thomas, Inc., 2006 U.S. Dist. LEXIS 48469 at * 8 (E.D. Tex. 2006).  (The Fifth Circuit has jurisdiction over Louisiana, Mississippi, and Texas.)  Wooten appears to resolve this problem in some respects by providing guidance on how much authority an employee must have to be considered a supervisor under Title VII.  In this respect, Wooten made clear that some inequality in power is unavoidable in the corporate context, and therefore, a mere differentiation of authority amongst two employees is not a legally sufficient basis to establish supervisor status.  Rather, the co-worker must have the power to take tangible employment action against the victim, such as the power to fire or demote.

In addition, Wooten provides important guidance on how employers may prevent those workers with some authority over their peers from being considered supervisors in the Title VII context.  Specifically, employers should delineate the powers of such employees and ensure that their authority does not extend to tangible employment actions.  Finally, employers should ensure that direct supervisors and managers are actively involved in the day-to-day management of the workplace and closely monitor the interactions of co-workers.  Jackson Lewis attorneys are available to answer your questions about this case and to discuss the practice of preventive employment law.

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