|Jottings By An Employer's Lawyer|
Tuesday, February 17, 2004
Important Post Faragher/Ellerth Question - Who Is A Supervisor For Purposes of Strict Liability
For there to be an issue of material fact as to whether a supervisor harassed Hrobowski, it is not enough that he point to evidence that just anybody with managerial authority was racially abusive; instead, Hrobowski must show that the harasser was his supervisor. Id. A supervisor is someone with the power to affect the terms and conditions of the plaintiff’s employment. Id. at 1034. In his opening brief, Hrobowski devotes substantial effort to proving that “managerial employees at Worthington directed offensive comments to him.” But he never points to evidence that a particular person with the power to influence the terms and conditions of his employment made such remarks.Given that the court could find no factual dispute under the negligence standard, the summary judgment was affirmed.
Although this is a certainly a common sense ruling on the scope of Faragher/Ellerth it is interesting that the Court did not cite to either opinion. Some would argue that the language quoted above from Faragher could
be interpreted much broader, to encompass anyone who ranks higher than the individual in question, rather than someone who has direct authority over them. Although the record is much less than clear, it appears that he may complained to the plant manager, although his place in the company hierarchy is not defined. However, if there had been a strong argument for a broader reading, it is hard to believe that it would not have been found by Judge Diane P. Wood who did not dissent. If there were a valid argument for a broader reading of supervisor, given both Judge Wood's intellect and predilection to protect the interests of employees, no doubt it would have been raised.