By: Jodi R. Mandell
Sexual harassment is a pervasive problem in the workplace. To
prevent and remedy this problem, Title VII of the Civil Rights Act
of 1964 makes it unlawful for an employer to discriminate against
an individual on the basis of sex. Title VII is violated not
only by economic or tangible discrimination, but also when sexual
harassment is so severe or pervasive that it alters the conditions
of employment and creates an abusive working environment.
With respect to this latter form of harassment, known as hostile
work environment sexual harassment, employers may be subject to
vicarious liability when the hostile work environment is created by
a supervisor, but not when it is created by a coworker.
Therefore, it is critical to determine whether the harassing
employee is a supervisor, or merely a coworker, for Title VII
purposes. However, determining who qualifies as a supervisor
has been a source of confusion for the courts, because the term is
not contained in Title VII and has not been defined by the Supreme
Court. Recently, in Mack v. Otis Elevator Co., the
Second Circuit interpreted broadly the term “supervisor” as one
whose authority “enabled or materially augmented” his or her
ability to create a hostile work environment. This broad
definition appears to be inconsistent not only with the Supreme
Court’s holdings in Burlington Industries, Inc. v. Ellerth and
Faragher v. City of Boca Raton, the principal cases for
analyzing vicarious liability in Title VII hostile work environment
cases, but also with the agency principles and Title VII objectives
upon which the Court relied.
It is submitted that the Second Circuit defined too broadly the
term “supervisor” when it relied on the harasser’s ability to
direct work activities, rather than the authority to hire, fire,
demote, promote, transfer, or discipline an employee. This
Comment asserts that the Second Circuit should have considered the
fact that the alleged harasser and the plaintiff were both members
of the same union, and that the harasser, therefore, did not have
the authority to make such economic decisions affecting the
plaintiff. This ability to make economic decisions seems to
distinguish a supervisor from a mere coworker and to ensure that
the individual was aided in accomplishing his or her sexual
harassment by his or her position as an agent of the
employer. Not only does the Second Circuit definition seem to
part from the agency principles and Title VII objectives upon which
the Supreme Court relied, it also appears to contradict the
definition of “supervisor” in the National Labor Relations Act
(“NLRA”). While the NLRA definition does not have to be
consistent with the Title VII definition, it can be helpful in
determining which employees should qualify as supervisors for Title
VII purposes. The Second Circuit’s test will likely make it
more difficult for companies to distinguish between coworkers and
supervisors and may have negative implications on company training
and monitoring. It is suggested that the Second Circuit
should have defined the term “supervisor” as one who has the
authority to take or to recommend tangible employment actions
against his or her subordinate employees.