As the US Supreme Court debates who is and who isn’t a supervisor for purposes of Title VII liability, California employers can be forgiven for yawning. It’s unquestionably an important issue, since employer liability for harassment by supervisors is all but automatic. But whatever the Court concludes will have little if any impact here in the Golden State.
For years, plaintiffs suing in California have preferred bringing claims under California’s Fair Employment and Housing Act to bringing analogous claims under Title VII. Filing the claims under the FEHA allows them to avoid both federal court (where it’s easier to have weak claims dismissed) and Title VII’s limits on non-economic damages (the FEHA has no such limits).
So what definition of supervisor applies under the FEHA? The one in Government Code sec. 12926(s):
"Supervisor" means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action . . . .
Those last six words expand the definition from those who make decisions to those with authority to make recommendations. So in the coming months, when the Supremes resolve who qualifies as a supervisor under Title VII, expect them to come up with something considerably narrower than what California employers are working with, which will only add to the list of reasons why discrimination claimants in California don’t sue under federal law.