Thursday, October 5, 2017

Sometimes a banana is just a banana, and sometimes you're liable for harassment


An employee grabs a co-worker’s penis and pokes another employee with a banana protruding from the zipper of his pants.

Should the employer be liable for sexual harassment?

Well, it depends. An employer’s liability for harassment often hinges on whether the harasser is a “supervisor.”

If the harasser is the victim’s co-worker, an employer is liable only if it was negligent responding to the harassment. If, however, the harasser is a supervisor, an employer is strictly liable if the harassment culminates in a tangible employment action. (Absent a tangible employment employment action, an employer has an affirmative defense when it exercised reasonable care to prevent and correct the harassment and the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities.)

Thus, it matters whether an alleged harasser is a “supervisor.” It matters a lot.

In Vance v. Ball St., the Supreme Court narrowed the definition of “supervisor” in harassment cases to one who can affect a “sig­nificant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”

This week, in Hylko v. Hemphill [pdf], the 6th Circuit had the opportunity to apply this definition in action.

David Hylko, Jr. and John Hemphill worked together at a U.S. Steel plant. Hemphill made sexual comments towards Hylko and touched him in a sexual manner (including the aforementioned grab and banana incidents). After Hylko complained to his area manager, division manager, and HR about the harassment, the company transferred him to another area, and further punished Hemphill with a one-week unpaid suspension and demotion. Thereafter, the harassment stopped. Nevertheless, Hylko resigned and sued.

At issue was whether Hemphill qualified as supervisor under Title VII. If he was a supervisor, then U.S. Steel might be automatically liable for the harassment. If not, however, U.S. Steel’s response to the harassment provides it a legitimate defense.

The 6th Circuit concluded that Hemphill was not a supervisor, despite the fact that everyone referred to him as such, and that he had responsibilities such as training Hylko and assigning his duties.
Hemphill had the authority to assign Hylko his daily duties, but not the authority to promote, to demote, or to fire him. And though Hemphill could recommend disciplinary action against Hylko, other U.S. Steel managers could do what they liked with those recommendations. Thus, Hemphill was not authorized to effect a significant change in Hylko’s employment status.  
Hylko contends that Hemphill was his supervisor because U.S. Steel and Hemphill both referred to him as such. But colloquial uses of “supervisor” do not control the question of whether an employee is one. 
Who is a supervisor matters. It might just save your bacon in a harassment case.

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