Daily Editors' Notes

Supervisor decision might torment many nursing home operators

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John O'Connor
John O'Connor
The Supreme Court last week heard oral arguments on the unpleasant subject of workplace harassment. At issue is whether an employer is responsible when the bully is not strictly a boss.

The court's ruling — which will likely be announced next June — is surely going to be watched closely by operators and their legal guns. That's because at many long-term care facilities, the line between bosses and subordinates can be blurry. A decision that creates new liabilities could unleash a menagerie of workplace flowchart headaches.

Currently, an employer is held accountable if a supervisor torments a subordinate. But the employer is off the hook if the harassment takes places between two employees at the same level — unless it can be shown the employer turned a blind eye to the point of being negligent.

The lower courts have struggled to find consensus when it comes to defining a supervisor. The First, Seventh and Eighth Circuit Courts adopted a narrow definition.  But the Second, Fourth and Ninth Circuits have taken a more open stance.

In the pending national Supreme Court case, the victim was Maretta Vance, an African-American employee at Ball State University. Vance was a food service worker who claims she was harassed by Saundra Davis, another employee. Davis, who is white, insulted Vance with references to the Ku Klux Klan, a white supremacist organization.

An appellate court in Chicago ruled last year that the university could not be prosecuted here. The court said negligence could not be proven and that Davis was not the supervisor of the plaintiff, as she did not have the power to hire or fire her.

"It is clear that Ms. Davis was not qualified as a supervisor," Gregory Garre, a lawyer for the university, said during last week's oral arguments.

But Daniel Ortiz, a lawyer for Vance, countered that "Davis told her what to do and what not to do ... Davis gave orders in the kitchen."

Justice Samuel Alito asked what the most unpleasant thing was that Davis could have assigned Vance to do.

"Could it be chopping onions all day, every day?" he asked.

"Certainly," Ortiz answered, adding that cleaning the toilets was also on the list of unpleasant tasks.

Chief Justice John Roberts asked if an employee tasked with choosing music for his workplace could be considered a supervisor if he told another employee: "If you don't date me, it's going to be country music all day long ... that affects the daily activities of that other employee."

In contrast, Justice Elena Kagan suggested that the lower court's test might be too lenient on employers.

Probably the last thing operators need right now are additional labor-related concerns. But this ruling just might give many communities another new knot to untangle: At what point do employees morph into supervisors?

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Daily Editors' Notes

McKnight's Daily Editor's Notes features commentary on the latest in long-term care news. Entries are written by Editorial Director John O'Connor on Monday and Friday; Staff Writer Tim Mullaney on Tuesday, Editor James M. Berklan on Wednesday and Senior Editor Elizabeth Newman on Thursday.

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