Who's in Charge of Your Liability?

"Is he a supervisor?"

That's the first question your attorney will ask if your company faces a claim of harassment. The issue is critical because companies are automatically liable for certain types of harassment by a supervisor — even if the employee failed to report the harassment — while harassment by a co-worker is analyzed under a different and sometimes more forgiving legal standard.

In a case that arose in Indiana, the U.S. Supreme Court recently defined "supervisor." The Court explained that a supervisor is someone with the power to take "tangible employment action." This means that the employee can make significant changes to someone's employment status — decisions such as whether to hire, fire, promote, transfer, reassign or change benefits.

Who makes these decisions in your facilities? Do you have "leads" or other employees with some supervisor-like duties who may exercise enough power to cause automatic liability for your company? Do you have any rogue supervisors who regularly exceed their authority? Are employees' job descriptions consistent with what they're actually doing? Are you including everyone the law may view as a "supervisor" in your regular EEO, anti-harassment and liability training?

With the new guidance from the Supreme Court, now is the time to examine these issues. Some employers have taken steps to narrow the group of employees the law could consider to be supervisors, while others have made changes to training, policies and documentation practices because of the risk that certain employees may be considered supervisors. Conducting your own internal "supervisor audit" can help you limit exposure to claims, as well as prepare you for your attorney's first question if and when another harassment claim arrives.

This article also appeared in RV Focus: A Newsletter for the RV Industry Professional, authored by lawyers who understand the RV industry and take a practical look at legal issues that can affect a company. Legal problems are costly and distracting, and company time is better spent focusing on production, sales, cost control and business relationships.