Second Circuit Adopts Expansive Definition of “Supervisor” Under Title VII

In a recent decision, the U.S. Court of Appeals for the Second Circuit in New York adopted a broad definition of “supervisor” for purposes of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and thereby expanded the circumstances under which an employer may be held liable for workplace harassment. Mack v. Otis Elevator Co., 326 F.3d 116 (2d Cir. 2003).

Title VII outlaws discrimination in employment on the basis of sex and various other protected characteristics and, as construed by the courts, prohibits harassment of employees on the basis of these characteristics. As the U.S. Supreme Court has recognized, one form of unlawful harassment is the creation of a “hostile work environment” — a workplace “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the condition of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In order to establish a violation of Title VII, however, it is not enough for a plaintiff to prove the existence of a hostile workplace; the plaintiff must also demonstrate that “a specific basis exists for imputing the conduct that created the hostile work environment to the employer.” Mack, 326 F.3d at 122. The most common basis for imputing such liability to an employer is by proving that the perpetrator of the harassment was a supervisor, not merely the plaintiff’s co-worker. That is, subject to certain defenses, where it was a supervisor who created the hostile work environment, the employer is automatically liable for that conduct. On the other hand, where the harasser is a non-supervisory co-worker, the employer can be held liable only where the employer knows or should have known about the harassment, and fails to remedy the situation. The Mack case provided the Second Circuit with the opportunity to wrestle with the definition of “supervisor” in this context.

The case arose when Yasharay Mack, who had worked as an elevator mechanic’s helper in a building that utilized Otis’s elevators, complained that she had been subjected to a hostile work environment because of her sex. Mack was the helper to six mechanics, one of whom, James Connolly, was the “mechanic in charge.” According to the applicable collective bargaining agreement, Connolly had the right to “assign and schedule work, direct the workforce, assure the quality and efficiency of the assignment, and to enforce the safety practices and procedures.” Id. at 121. As “mechanic in charge,” however, Connolly did not have the power to discipline or discharge other employees. He reported to a supervisor who maintained an office in the building in which he and Mack worked, but the supervisor was rarely on-site. Mack alleged that she was subjected to a litany of sexually harassing comments and conduct by Connolly throughout her eleven-month tenure with Otis.

Otis moved for summary judgment in the district court, arguing that Connolly was not a supervisor and that Otis could not be held vicariously liable for the creation of a hostile work environment. The district court granted Otis’s motion, basing its decision on a case decided by the Seventh Circuit Court of Appeals, Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027 (7th Cir. 1998). In Parkins, the Seventh Circuit ruled that a supervisor is one who has authority that “primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee. Absent an entrustment of at least some of this authority, an employee does not qualify as a supervisor for purposes [of] imputing liability.” The district court in Mack found that Connolly possessed certain authority over other employees but that he lacked the authority to impose any of the tangible personnel actions enumerated in Parkins, and that he therefore could not be considered a supervisor for purposes of Title VII.

The Second Circuit rejected this definition as too limited and overturned the district court’s decision, finding that a supervisor is any individual with “a special dominance over other . . . employees.” Mack, 326 F.3d at 126. In concluding that an individual may be a supervisor even if not empowered to impose tangible personnel actions of the types enumerated in Parkins, the court relied in part on the Enforcement Guidelines on Vicarious Liability for Unlawful Harassment by Supervisors issued by the Equal Employment Opportunity Commission (“EEOC”). The EEOC Guidelines define a supervisor as one who either has the authority to make tangible employment decisions affecting other employees or controls the daily work activities of other employees. The Second Circuit readily found that Connolly controlled the daily work activities of Mack and others, and therefore was properly considered a supervisor.

By adopting this expansive definition of “supervisor,” the Second Circuit has created a disagreement among the federal appeals courts that will ultimately have to be resolved by the U.S. Supreme Court. In the meantime, the Mack decision underscores, once again, the importance of maintaining and vigorously enforcing policies that foster a harassment-free workplace. Under the Supreme Court’s 1998 decisions in Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton , 524 U.S. 775 (1998), even where a plaintiff alleges that the actions of a supervisor have created a hostile work environment, the employer can avoid liability by demonstrating either that (a) it used reasonable care to prevent or promptly remedy any sexually harassing behavior, and (b) the plaintiff failed to take advantage of opportunities offered by the employer for the prevention or correction of harassment. By instituting harassment-free workplace policies and training employees to comply with them, employers can go a long way toward ensuring that these affirmative defenses will be available and therefore reduce the likelihood that they will be held vicariously liable for sexual harassment.