Recent Supreme Court Ruling on Who is a Supervisor Does Not Affect Supervisor Test Under National Labor Relations Act

By now you have heard that the U.S. Supreme Court recently ruled that an employee is a supervisor when the employer has empowered that worker “to take tangible employment actions against the victim,” including hiring, firing, failing to promote, reassignment, or some other action causing a significant change in employment status. See, Vance v. Ball St. Univ.

Now, for purposes of Title VII claims, which allege harassment or discrimination based on race, gender, sex, military status, etc., if the alleged harasser is a supervisor, the company can be held liable for his or her harassment. However, if the alleged harasser is a co-worker and not a supervisor, the employer will be liable only if it was negligent in controlling the working conditions. This is good news and a good time for companies to review their harassment training – when was it last done, who did it, are the materials current, etc.

When dealing with who is a supervisor for labor relations purposes, i.e. which workers may lawfully be included in a bargaining unit, employers must still comply with Section 2(11) of the National Labor Relations Act. A Section 2(11) supervisor is an employee with authority to hire, fire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees. Additional duties may include directing employees, answering grievances, or recommending disciplinary action, so long as it requires independent judgment. Whether a job description or title identifies one as a supervisor is inconsequential; actual day to day duties must be evaluated.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at or by phone at 614.285.5342.