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Broad Definition of "Supervisor " Throws More Uncertainty into Employer Liability

By Philip B. Rosen
  • June 1, 2003

Borrowing from the Equal Employment Opportunity Commission's definition, the U. S. Court of Appeals for the Second Circuit has ruled that an employee may be a "supervisor" without possessing "tangible employment authority" over another employee. The ruling came in the context of a sexual harassment lawsuit against the employer as being vicariously liable for the allegedly unlawful conduct of the employee "supervisor."

Regarding the determination of whether the employee engaging in the misconduct is a supervisor, the court said, "The question in such cases is not whether the employer gave the employee the authority to make economic decisions concerning his or her subordinates. It is, instead, whether the authority given by the employer to the employee enabled or materially augmented the ability of the latter to create a hostile work environment for his or her subordinates."

This definition of "supervisor" was promulgated by the EEOC in 1999 guidelines issued after the Supreme Court's decisions. The EEOC guidelines state that an employee is another employee's "supervisor" if the individual has authority: 1) to undertake or recommend tangible employment decisions affecting the employee; or 2) to direct the employee's daily work activities (see "Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors," No. 915.002, June 18, 1999).

In this case, the Second Circuit found that the offending employee did not have authority to hire or fire, fail to promote, reassign significantly different responsibilities, nor significantly change benefits for the other employee. Accordingly, the court found no "tangible employment authority." However, the offending employee was the senior employee regularly on site who made and oversaw daily work assignments for her and other employees in the department, and as such, was her "supervisor."

The misconduct alleged by the employee started her first day on the job in 1999 with inappropriate and offensive comments about her appearance. She claimed the employee regularly changed out of his uniform down to his underwear in front of her and once pulled her onto his lap, tried to kiss her, and touched her buttocks. She claimed he also used racial slurs and commented that women did not belong in elevator work.

When the employee's complaints about the offensive sexual conduct of the "supervisor" failed to result in corrective action, she filed suit in the U.S. District Court for the Southern District of New York, claiming violations of Title VII of the 1964 Civil Rights Act and state and city law.

The district court granted summary judgment to the employer, but on appeal, the Second Circuit reversed that decision and reinstated her lawsuit to determine whether she suffered a tangible employment action and, if not, whether the employer is entitled to use the affirmative defense to avoid liability.

"The existence of a tangible employment action thus affects whether the affirmative defense is available, but it does not affect the preliminary assessment of whether the employer may be vicariously liable," the Second Circuit said. [Mack v. Otis Elevator Co., 2d Cir., No. 02-7056, 4/11/03).]

©2003 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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