When is a Worker a ‘Co-Worker’ and When is He a ‘Supervisor’ in Terms of a Sexual Harassment Case

The case of gross misbehavior going on at a West Tennessee auto parts store contained some unusual facts. All of the sides agreed that the conduct of the alleged harasser, who was also the store manager, was “repulsive.” Everyone agreed “that he got what he deserved when” the employer fired him shortly after its investigation. What wasn’t clear was whether the store manager held a role within the employer’s organization with enough power such that the employer could be liable for his harassing conduct. Ultimately, the courts decided that the employer was not liable in this case because of the limited authority the store manager actually held.

The facts of the case were fairly salacious. The alleged harasser was a man whom the employer sent to be the store manager at its Cordova, Tenn. location in May 2012. At this particular employer, store managers had the power to hire new hourly workers and could “write up” employees for alleged misdeeds, but they had no power to fire, to demote, or to transfer employees. That authority rested with the district manager.

Within three months, the store manager was telling female workers about things he planned to do with them sexually. These advances were phrased in very crude terms. He allegedly graduated to grabbing some workers in their genital areas and trying to show one of them some porn he had on his phone.

By October, one of the women mentioned the harassment to the district manager. The district manager talked to another of the women, who backed up the first woman’s assertions. In early November, the district manager contacted a human resources manager. By mid-November, the store manager was transferred away from the Cordova location, and the employer fired him in early December.

Eventually, the Equal Employment Opportunity Commission launched a Title VII action against the employer. The complaint alleged that all three women suffered from impermissible sexual harassment.

The trial court and the Sixth Circuit Court of Appeals both agreed, however, that the employer wasn’t liable. The EEOC’s case had two substantial problems. The first was the role that the store manager had within the employer’s organization. An employer can be liable for a co-worker’s sexually harassing another co-worker, but only when the employer is “negligent in controlling working conditions.” What that means is that the employer knew or should have known that the harassment was going on, but it did not “take prompt and appropriate corrective action.” In this case, the employer acted swiftly and definitively once it learned about the alleged harassment and confirmed it via an investigation.

If the harasser is a supervisor, the bar is lower for finding the employer liable. In this scenario, the employer can be liable if “the agency relationship aids the victim’s supervisor in his harassment.” In other words, if the harasser is able to use his power within the company to conduct his harassment, the employer can be liable even if it was not negligent in its response addressing the harassment.

Here, the store manager legally qualified as a co-worker, rather than a supervisor. He could not fire the women, demote them, or transfer them to other stores. Given the district manager’s hands-on involvement in running the Cordova store, the store manager effectively had no power to inflict any adverse employment consequences on the women. The store manager had the ability to “write up” workers, and he conducted the performance evaluations of the workers at the store. Those things, however, simply were not enough to make him a “supervisor” in the Title VII sexual harassment context, according to the Sixth Circuit.

Whether you are an employer or an employee, any circumstance involving possible sexual harassment is a serious matter and requires a serious and immediate response. The diligent Tennessee sexual harassment attorneys at Parks, Chesin & Walbert have been providing reliable advice and representation in sexual harassment and other Title VII cases for many years.

To speak with one of our lawyers about your case, call 404-873-8048.

More blog posts:

Sixth Circuit Upholds Ruling for Employer in Harassment Case Arising from Two Unwanted Sex-Related Texts, Atlanta Employment Attorneys Blog, Sept. 28, 2016

Failure to Act Costs Tennessee Employer in Employee’s Sexual Harassment Case, Atlanta Employment Attorneys Blog, March 3, 2016

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