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Lead Employee May Be a "Supervisor" in California Sexual Harassment Case

A lead employee may be a supervisor in determining liability for sexual harassment under the California Fair Employment and Housing Act. Almanza v. Wal-Mart Stores, Inc., No. 06-0553 (E.D. Cal., Aug. 7, 2007). Denying the employer's motion for summary judgment, the District Court ruled that the plaintiff could proceed to trial on her claims that the employer was strictly liable for alleged sexual harassment by a lead employee. Although the lead had no authority to hire, fire, discipline, or transfer employees, factual disputes existed regarding his authority to direct employees and his influence on employment decisions.

From 2000 to 2003, the plaintiff worked as an "unloader" for the employer and was responsible for moving merchandise from delivery trucks and transporting it to the sales floor. The plaintiff worked with a "lead unloader" who ensured that other unloaders moved freight quickly and efficiently. Both the plaintiff and the lead were hourly workers. The lead's responsibilities included unloading trucks, asking other unloaders to find empty pallets for incoming merchandise, and instructing other unloaders to take merchandise to the store shelves. Evidence showed that the lead would determine whether the unloaders needed to work past a rest or meal period and whether they were eligible for training and overtime compensation. The evidence also showed that the lead would approve requests for vacation, sick leave, or late arrivals; would prepare performance appraisals; and that the employer's managers gave the lead's performance assessments significant weight when making various employment decisions.

Alleging that the lead sexually harassed her, the plaintiff further claimed that the employer should be held strictly liable for the alleged harassment because the lead was a supervisor under the FEHA. The employer asked the court to dismiss the case, arguing that the alleged harasser, the lead, was not a supervisor. The court rejected the employer's argument.

The court stated that the nature of the employer's liability under the FEHA turned on whether the alleged harasser was a supervisor. If the lead was not a supervisor, the employer would be liable only if the plaintiff showed that the employer knew or should have known of the harassment and failed to take appropriate corrective action. However, if the lead was a supervisor, the employer would be strictly liable for harassment.

Under the FEHA, a supervisor is defined as an individual with authority on behalf of an employer to "hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees" or to direct employees, resolve employee grievances, or to recommend such action, provided that the employee's exercise of authority "requires the use of independent judgment."

While the parties agreed that the lead was not a salaried management employee and that he had no authority to hire, fire, promote, discipline, or transfer employees, they disagreed regarding the lead's discretion in assigning or directing the other unloaders' work. The employer argued that the lead received instructions and relayed them to the other unloaders and that he did not exercise any independent thought or discretion. The employee argued that the lead exercised discretion in assigning work, overtime, and in scheduling breaks and time off. The court concluded that a factual dispute existed regarding the nature of the lead's ability to direct other employees' work.

The employer then argued that the lead had no influence on employment actions involving other employees. While acknowledging that the lead signed performance appraisals, the employer argued that the lead's signature was "routine" and was given no weight by management. However, the plaintiff produced evidence, including the testimony of a manager, that managers gave substantial weight to the lead's recommendations. The court concluded that a factual dispute existed regarding whether the lead may have influenced employment decisions involving the plaintiff. It therefore denied summary judgment to the employer.

Ramifications

Knowing whether your lead employees in California are "supervisors" has ramifications far beyond any one particular case. For example, California employers have an additional obligation under AB 1825 to provide sexual harassment training to supervisors upon hire and every two years thereafter.

The California definition of a supervisor also is the same as that under Section 2(11) of the National Labor Relations Act. Employers frequently argue in Labor Board proceedings that leads are statutory supervisors under the NLRA, so that they must be aligned with the employer's interests in the event of union organizing. Employers who argue that leads are supervisors under the NLRA for union avoidance purposes need to be aware of potential consequences for liability under the California FEHA if that argument succeeds.

Jackson Lewis attorneys are available to provide additional information about this decision and the issues related to leads being supervisors.