In our last blog post, we looked at the US Supreme Court’s decision in Vance v. Ball State. Very generally, Vance says that a “supervisor” under sexual harassment law must be someone who has the authority to hire and fire.
This was not welcome news to employee rights advocates. In my last blog post, I suggested that all of the news from Vance was not bad. This brings us to the Supreme Court’s peculiar footnote 8.
Footnote 8 addresses a situation where an alleged supervisor cannot hire and fire but does have the authority to make hiring and firing recommendations that are given weight. In footnote 8, the Supreme Court suggests that people who have such advisory authority would be “supervisors,” even though they do not personally have the authority to hire and fire.
If footnote 8 means what it says, then the Vance decision could be interpreted very differently than many commentators are now assuming.
Footnote 8 would allow lower courts to understand the term “supervisor” to include those people who have the ear of those who make hiring and firing decisions, even if he or she does not have that authority themselves. This seems like a rational conclusion. Expect employee rights advocates to advance this interpretation.
So, what to make of footnote 8? It suggests a more common sense reading of the Vance decision that some folks are advancing. To take advantage of it, however, counsel for employees must do the hard work in discovery. We must show that a “supervisor” really is a “supervisor.” In other words, find out whether they have the ear of the upper management. Find out whether their advise regarding “hiring” and “firing” is given weight. Find out if they are classified as FLSA exempt. If so, this may be probative of the fact they can cause a termination, especially if they are classified as exempt under the executive exemption. Footnote 8 in Vance can be valuable tool, but only if it is used.