Publications
Co-employee had ‘supervisor’ status in creating hostile work environment; Court Report
Mack v. Otis Elevator Co., 2d Cir., No. 02-7056. April 11. 2003.
Employers are legally liable for the harassment of employees by their supervisors, but who is considered a supervisor under Title VII? The 2nd U.S. Circuit Court of Appeals recently said the answer doesn’t depend on an individual’s authority to take “tangible employment actions” but on whether the individual’s authority enables him to create a hostile work environment for subordinates. (For more on tangible employment actions, see “Constructive Discharge Is ‘Tangible Employment Action’ “on page 105.)
The recent case involved Yasharay Mack, who worked as an elevator mechanic for Otis Elevator Co. and who filed a Title VII lawsuit claiming that the elevator “mechanic-in-charge” at her worksite subjected her to a hostile work environment.
Although the mechanic-in-charge was covered by the applicable collective bargaining agreement, he had the right to–and did-assign and schedule work, direct the workforce, ensure the quality and efficiency of assignments and enforce safety practices and procedures.
But the trial court ruled that the elevator “mechanic-in-charge” was not a supervisor for the purposes of Title VII, so the company was not liable for his actions.
The 2nd Circuit reversed, ruling that the test used by the trial court to determine supervisory status was too restrictive. That test focused on whether the employee was empowered to take “tangible employment actions” with respect to subordinates.
A better test, the 2nd Circuit determined, is whether “the authority given by the employer to the employee enabled or materially augmented the ability of the employee to create a hostile work environment for his subordinates.”
Applying that test, the court found the mechanic-in-charge to be the plaintiff’s supervisor for purposes of Title VII. Because he directed the particulars of Mack’s workdays, including her work assignments, and was the senior employee on the work site, he possessed a special dominance over on-site employees–especially since the workers’ location was remote and no one else nearby had authority to exercise power on Otis’s behalf.
Professional Pointer
This ruling provides yet another reason to train all employees regarding appropriate workplace behavior, including lead employees (especially those at remote locations) that you might not consider “supervisors” in the traditional sense.
Lawrence Peikes is an attorney with the law firm of Wiggin & Dana in Stamford, Conn.
