Title VII of the Civil Rights Act of 1964 prohibits the creation of a hostile work environment based on the prohibited forms of discrimination, such as discrimination based on sex or race. To hold an employer liable for the harassment, the plaintiff must show that the work environment was so pervaded by discrimination that the terms of employment were altered. Isolated or trivial occurrences are not likely to be sufficient.
Recently, the Supreme Court clarified the issue of when a harassing fellow worker is a “supervisor” and not merely a co-worker for purposes of making the employer entity liable for that harassment.
Conduct of Co-Workers
If the harassing employee is the victim’s co-worker, that is, someone no higher in the chain of command than the victim is, the employer is liable under Title VII only if it was negligent in controlling working conditions. However, if a supervisor’s harassment of an employee culminates in a tangible employment action, such as a termination or a demotion, the employer is strictly liable under Title VII.
When, as is very often the case in harassment litigation, there has been no tangible employment action taken against an employee who was harassed by a supervisor (such as a firing or demotion), under prior U.S. Supreme Court precedence the employer may escape liability under Title VII by establishing a two-pronged affirmative defense.
The employer must prove that: (1) the employer exercised reasonable care to prevent and correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided.
When Is a Co-Worker a “Supervisor”
Recently the Supreme Court clarified the issue of when a harassing fellow worker is a “supervisor” and not merely a co-worker for purposes of making an employer entity liable for that harassment. In the case before the Court, the plaintiff was an African American employee in a University’s Catering Department. She alleged that a white employee to whom she had been assigned as an assistant harassed her by using racial epithets and relegating her to menial jobs because of her race.
The plaintiff argued that the harasser was the plaintiff’s “supervisor,” for Title VII purposes, because the harasser had been given the ability to exercise direction over the plaintiff’s work, a power that also enabled her to racially harass the plaintiff. In this argument, the plaintiff had no less an ally than the Equal Employment Opportunity Commission, which had taken basically the same position in an enforcement guidance it had issued.
The court rejected the plaintiff’s claim finding that for a harassing individual to be considered a “supervisor” under Title VII, a more demanding and restrictive definition of “supervisor” was appropriate.
Unlike the harasser in the case before it whose powers over the plaintiff did not extend beyond generally directing her daily activities, a fellow employee will be considered a “supervisor” only when the employer has empowered that employee to affect a “significant change in the victim’s employment status.” In other words, the employer has given the “supervisor” the authority to terminate an employee.
To be a supervisor, an employee must be empowered to take employment actions against the victim such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.
All employers, from small family businesses to those with several hundred employees, should be aware of the consequences of the actions of its employees and take a proactive approach to preventing hostile work environments, regardless of the above-referenced decision that makes it more difficult for an employer to be held responsible for a co-worker’s actions unless that co-worker is deemed to be a supervisor by the standards set forth above.