Employment Law Practitioner Larry Peikes Quoted in Business Insurance re Mack vs. Otis Elevator Co.

June 13, 2003
Business Insurance, June 9, 2003
Court expands legal definition of 'supervisor'; 2nd Circuit ruling adds vicarious liability risk. 
by Judy Greenwald
 
Employers in New York, Connecticut and Vermont are more likely to be found vicariously liable for employment discrimination as a result of a federal appellate decision that expands the definition of ''supervisor'' for the purposes of bias claims, say employer attorneys.

Some observers say that because the unanimous decision by the 2nd U.S. Circuit Court of Appeals panel in Mack vs. Otis Elevator Co. relies on a definition of ''supervisor'' different from that in other federal court decisions, the U.S. Supreme Court may eventually decide the issue.

The April 11 decision, which initially received little attention, is based on two 1998 U.S. Supreme Court decisions that dealt with supervisor harassment-Burlington Industries vs. Ellerth and Faragher vs. City of Boca Raton . In those decisions, the high court set forth the standard of vicarious liability for employers, and established an affirmative defense employers could use to minimize or avoid such liability in cases of supervisors harassing subordinates. To use that defense, an employer must have a discrimination policy in place and provide training on the policy to supervisors. Neither decision, however, provides a detailed discussion what constitutes a supervisor.

The suit in the 2nd Circuit case was brought by Yasharay Mack, an African-American woman who worked as an elevator mechanic's helper for Farmington, Conn.-based Otis Elevator Co. Ms. Mack, who worked for the company from July 1999 to May 2000, was assigned to assist six mechanics at a Manhattan building. One of the mechanics, James Connolly, was designated ''mechanic in charge.'' Mr. Connolly's supervisor was rarely on the premises.

In October 2000, Ms. Mack sued Otis, accusing the company of subjecting her to a hostile work environment because of harassment by Mr. Connolly, among other charges. A lower court granted Otis summary judgment dismissing the case.

The district court held that because Mr. Connolly was not a supervisor, Otis could not be held vicariously liable for his conduct. But the appellate court disagreed, finding that Mr. Connolly was a supervisor.

''Not only did (Mr. Connolly) direct the particulars of each of (Ms.) Mack's work days, including her work assignments, he was the senior employee on the worksite,'' says the decision. ''He therefore possessed a special dominance over other onsite employees, including (Ms.) Mack, arising out of their remoteness from others with authority to exercise power on behalf of Otis.''

The 2nd Circuit decision noted the court disagrees with a 1998 opinion by the 7th U.S. Circuit Court of Appeals in Chicago in Parkins vs. Civil Constructors of Illinois Inc. That ruling more narrowly defined a supervisor as someone with the authority to ''hire, fire, demote, promote, transfer or discipline an employee.''

The 2nd Circuit affirmed the dismissal of other charges against Otis, but it returned the case to the lower court for further proceedings on the issue of the alleged hostile work environment. Otis attorney Kenneth W. Gage of Stamford, Conn.-based Day, Berry & Howard said that Otis has not decided whether to appeal the case to the U.S. Supreme Court.

Employer attorneys say the decision, by broadening the definition of ''supervisor,'' will make it easier for employees to prevail in bias lawsuits against their employers.

Phillip Berkowitz, an attorney with Seyfarth Shaw in New York, said the opinion ''definitely gives employees another arrow in their quiver.''

The decision ''threatens to create a new class of supervisors that essentially reaches across the corporate hierarchy, and it suggests that whenever an individual has responsibility over an employee's day-to-day activities, even if they don't reach the level of traditional supervisors with responsibilities for determining pay increases and performing performance appraisals, that the employee's conduct bonds the company and the employer can become automatically liable for that individual's discrimination or harassment.''

The 2nd Circuit's view ''winds up blurring the lines between employer liability for the acts of an immediate supervisor and those of a co-worker, who may be a member of management, but is not the immediate supervisor,'' said Jay W. Waks, an attorney with Kaye Scholar in New York.

Indeed, the decision ''waters down'' the historical definition of a supervisor, said Lawrence Peikes, an attorney with Wiggin & Dana in Stamford, Conn.

Richard Zackin, an attorney with Gibbons, Del Deo, Dolan, Griffinger & Vecchione in Newark, N.J., said the decision is ''going to require employers to provide harassment training to more than just supervisors who have the authority to hire and fire and demote.'' They will need to train any employee who ''can control the daily activities of the employees.'' Otherwise, employers will be unable to defend themselves on the basis that they have a sexual harassment policy in place, he said.

The 2nd Circuit's conflict with the 7th Circuit's definition of a supervisor-which has been adopted by other courts-may ultimately be resolved by the U.S. Supreme Court.

''You not only have the conflict (with other courts), but you have the basic question of what does the phrase 'supervisor' mean,'' said John Canoni, an employer attorney with Nixon Peabody in New York.

Ms. Mack's attorney, Saul D. Zabell, of Farmingdale, N.Y.-based Somma, Zabell & Associates L.L.P., said the Supreme Court might consider the issue because of the ''overly restrictive definition that came out of the 7th Circuit.''

However, some attorneys believe the Mack decision arose out of the particular circumstances of this case, and, therefore, is unlikely to win the Supreme Court's attention. ''It looks at the issue of supervisory status in a very, very specific context,'' said Mr. Peikes.

Yasharay Mack vs. Otis Elevator Co. and Local 1 International Union of Elevator Constructors, 2nd U.S. Circuit Court of Appeals, 02-7056.