Jottings By An Employer's Lawyer

Tuesday, February 17, 2004

Important Post Faragher/Ellerth Question - Who Is A Supervisor For Purposes of Strict Liability

The consequences of supervisory harassment on the basis of a prohibited category were made more serious by the Faragher/Ellerth decisions of the Supreme Court. If the harasser is a supervisor there is strict liability, subject only to an affirmative defense, available only if there is no tangible job action. One question not specifically answered is how broadly "supervisor" will be construed. The language in Faragher is "a supervisor with immediate (or successively higher) authority over the employee." The 7th Circuit provides its answer in a racial harassment case where it succinctly summarized the facts as follows:
Worthington has employed Hrobowski, a black man, since 1976. Since January 30, 1997, Hrobowski has been Worthington’s director of safety and health, although he has been on medical leave since April 2, 1999. According to the district court, Hrobowski put forth the following evidence to support his claim of a hostile environment: “(1) Maintenance department employees used racial epithets [especially the word ‘nigger’] frequently; (2) a co-employee made an inappropriate comment about property values decreasing when blacks move in; and (3) co-supervisors would tell [Hrobowski] that he needed to ‘talk some nigger to nigger’ with an employee.”
Hrobowski v. Worthington Steel Company (7th Cir. 2/17/04) [pdf].

Not too surprisingly the Court found that plaintiff had met all the basic elements of a harassment claim, yet it affirmed the district court's grant of summary judgment for the employer. The key was which standard of liability was applicable to the company - the strict liability standard of Faragher/Ellerth or the negligence standard applicable when it is harassment by someone other than a supervisor. The key to the decision is how the 7th Circuit defined supervisor:
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.

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