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Second Circuit Broadly Interprets Who Constitutes a ‘Supervisor’ for Purposes of Imputing Liability to Employers for Sexual Harassment Claims
In Mack v. Otis Elevator Company, 326 F.3d 116 (2d Cir. 2003), the Second Circuit refined the test for determining whether an employee is properly classified as a “supervisor” for purposes of imputing liability to the employer in sexual harassment cases alleging a hostile work environment.
The Faragher-Ellerth Defense
By way of background, the United States Supreme Court has ruled that employers are strictly liable for supervisory harassment so egregious as to violate Title VII. Employers may, nevertheless, be able to avoid liability by availing themselves of an affirmative defense, commonly known as the Faragher-Ellerth defense, after the Supreme Court cases in which it was first articulated. The Faragher-Ellerth defense is available where the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and the complaining employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. The defense is not available, however, where the complaining employee alleges that he or she has suffered a tangible employment action, such as a termination, reduction in pay or demotion.
By way of background, the United States Supreme Court has ruled that employers are strictly liable for supervisory harassment so egregious as to violate Title VII. Employers may, nevertheless, be able to avoid liability by availing themselves of an affirmative defense, commonly known as the Faragher-Ellerth defense, after the Supreme Court cases in which it was first articulated. The Faragher-Ellerth defense is available where the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and the complaining employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. The defense is not available, however, where the complaining employee alleges that he or she has suffered a tangible employment action, such as a termination, reduction in pay or demotion.
In contrast, an employer may not be held liable for a sexually hostile environment created by a co-worker, unless the employer knew or should have known about the sexual harassment and failed to take appropriate corrective action. Accordingly, it is important to determine, in the first instance, whether the alleged harasser is a supervisor or a co-worker for purposes of determining whether liability for the sexual harassment may be imputed to the employer.
In Mack, the plaintiff, an elevator mechanic for Otis Elevator Company (“Otis”), alleged that she was forced to endure a hostile work environment as a result of the sexually-charged acts and comments of the elevator “mechanic in charge” at her worksite. The district court ruled as a matter of law in favor of Otis, concluding that the plaintiff had failed to show she had been harassed by an Otis “supervisor” and, therefore, Otis could not be held vicariously liable.
Supervisory Status
The Second Circuit reversed, ruling that the test utilized by the district court to determine supervisory status was too restrictive, because it focused on whether the employee in question is empowered to take tangible employment actions with respect to his or her subordinates. The court reasoned that while the existence of a tangible employment action affects whether the Faragher-Ellerth affirmative defense is available to the employer, it does not affect the preliminary question of whether the employer may be held strictly liable for the actions of the accused harasser. Accordingly, the court stated that the test of supervisory status 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 the test to the facts of the case, the Mack court found the alleged harasser to be the plaintiff’s supervisor for purposes of imputing Title VII liability to Otis, observing that the alleged harasser directed the particulars of the plaintiff’s workdays, including her work assignments. He was also the senior employee on the work site, therefore possessing a special dominance over on-site employees, arising out of their remoteness from others with authority to exercise power on behalf of Otis. The court concluded that Otis could, therefore, be held vicariously liable, subject to the Faragher-Ellerth special defense since the plaintiff had suffered no tangible employment action.
Application to Employers
This case provides one more reason for employers to train all employees regarding appropriate workplace behavior, even where the employees might not be considered by the employer to be “supervisors” in the traditional sense, since the misconduct of such employees could result in liability for the employer.
This case provides one more reason for employers to train all employees regarding appropriate workplace behavior, even where the employees might not be considered by the employer to be “supervisors” in the traditional sense, since the misconduct of such employees could result in liability for the employer.