The Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964, as amended, which prohibits discrimination based on national origin, sex (including pregnancy and sexual harassment), race, color, and religion. Under Title VII, an employer is presumed responsible for sexual harassment perpetrated by the victim’s supervisor. `i` Liability is imputed to the employer because a supervisor is considered an agent of the employer and, clothed with the employer’s authority, a supervisor is able to directly affect an employee’s employment. Consequently, determining whether someone is considered a “supervisor” under Title VII, even someone without the job title, has significant liability implications to the employer.
The United States Supreme Court has held that where an employee is sexually harassed by a supervisor, and that conduct results in a tangible employment action such as a termination, demotion or constructive discharge, the employer will be vicariously liable for the supervisor’s conduct. `ii` Even if the employee experienced no adverse employment consequences, the employer is still vicariously liable for such acts of a supervisory employee. The employer, however, may raise an affirmative defense to liability alleging (1) that the employer exercised reasonable care to prevent and promptly correct the harassing behavior, and (2) that the subordinate employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or failed to otherwise avoid harm from the harassing behavior. `iii` When an employee is harassed by a co-worker, there may still be liability on the part of the employer but only if the employee demonstrates that the employer knew, or should have known, of the harassment and failed to take appropriate measures to correct it.
Recently, the Second Circuit Court of Appeals found that liability may be imputed to an employer for actions of a person in charge of the worksite even though the employer did not designate the person as a supervisor or manager. `iv` It was undisputed in the case that the mechanic in charge, although not designated a supervisor, directed a female employee’s work assignments and work schedule and was the senior employee regularly on the job site. Finding this conduct qualified the mechanic as a “supervisor” under Title VII, the Second Circuit Court agreed with the EEOC that a supervisor is broadly defined as someone with “authority to undertake or recommend tangible employment decisions affecting the employee” or “authority to direct the employee’s daily work activities.” `v` The decision diverges from other federal courts that have defined a supervisor as someone with the power to hire, fire, demote, promote, transfer, or discipline another employee. The First Circuit Court of Appeals (under which jurisdiction New Hampshire falls) has not addressed this issue.
What are employers to do? One useful step would be not to rely on job titles when selecting employees to be trained concerning discrimination laws. Individuals who have control over other employees’ daily activities or provide work assignments or team leadership should receive the same type of training as those with the word “manager” or “supervisor” in their titles. Employers should be mindful that the definition of a supervisor or manager might be interpreted differently depending on the law at issue. Therefore, finding someone a supervisor for purposes of Title VII may not mean that the same conclusion would be reached under another employment or labor law.
`i` See, e.g., Burlington Industries v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
`ii` Faragher, 524 US 775 (1998).
`iii` Burlington Industries, 524 U.S. at 765; Faragher, 524 U.S. at 807-08.
`iv` Mack v. Otis Elevator Co., 326 F.3d 116 (2nd Cir. 2003)
`v` Mack, 326 F.3d at 127 (citing EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 FEP Manual (BNA) 405:7654(1999)).