In an opinion issued this week, the Sixth Circuit Court of Appeals (which covers Ohio, Michigan, Kentucky and Tennessee) affirmed dismissal of a case alleging same-sex sexual harassment primarily based on the prompt and effective action taken by the employer in response to the plaintiff employee’s complaint.
Plaintiff (Hylko) and the alleged harasser (Hemphill) worked closely together at U.S. Steel. Hemphill trained Hylko and assigned his duties. Both reported to an area manager.
Hylko claimed that Hemphill harassed him as soon as they started working together, that Hemphill regularly asked Hylko about his sex life and that Hemphill grabbed his buttocks and private parts.
Hylko complained to management, who offered him a transfer to a different area of the plant, which he accepted. Management then met with Hemphill, who admitted some of the harassment. They then gave him a verbal warning, one week suspension and demotion to shift manager and made him take a leadership class. No harassment occurred again after that.
The standard for employer liability for hostile work environment harassment that does not result in a tangible adverse employment action depends typically on whether or not the harasser is the victim’s supervisor. An employer is vicariously liable for a hostile work environment created by a supervisor unless it can prove that (a) the employer exercised reasonable care to prevent and correct promptly any harassment; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. By contrast, an employer is liable for hostile work environment harassment by employees who are not supervisors only if the alleged victim can prove the employer was “negligent in failing to prevent harassment from taking place.” In assessing such negligence, the court will look to such factors as the nature and degree of authority wielded by the harasser and evidence the employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints or effectively discouraged complaints from being filed. In essence, the supervisory status of the alleged results in a shifting of the burden of proof with respect to whether the employer has taken necessary steps to prevent and respond to allegations of harassment.
Therefore, the court first analyzed whether U.S. Steel could be liable for Hemphill’s conduct as an alleged “supervisor.” Based on the U.S. Supreme Court’s 2013 decision in Vance v. Ball State University, “an employee is a ‘supervisor’ under Title VII only if he is ‘empowered by the employer to take tangible employment actions against the victim.’” Although U.S. Steel and Hemphill both referred to him as a “supervisor,” the court held he had no authority to promote, demote or fire Hylko and could only recommend disciplinary action (which management could take or leave). Therefore, because Hemphill “was not authorized to effect a significant change in Hylko’s employment status,” the court concluded Hemphill did not meet the legal definition of “supervisor.”
The court then addressed whether U.S. Steel could be liable for Hemphill’s conduct as a “co-worker.” Hylko claimed U.S. Steel treated men who harassed women more harshly than it treated Hemphill, but the court held there was no requirement that an employer treat every harassment complaint the same. Rather “a response is adequate if it is reasonably calculated to end the harassment.” Finding that the company had promptly and adequately taken action to end the harassment, there the court found no basis for employer liability.
- Although the company referred to Hemphill as a “supervisor,” the court found this was a “colloquial” use and did not control whether the employee was one under Title VII standards. However, not all courts would be so forgiving. Employers will want to be careful to make sure employees are identified as “supervisors” only if they are actually empowered to effect significant change in the employment status of the people with whom they work, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or to make decisions that would cause a significant change in benefits.
- This case also underscores the importance of the timeliness and effectiveness of the employer response to a harassment complaint. Here, Hylko admitted that after he complained, the employer’s response resulted in an end to the alleged harassment. Undoubtedly, therefore, the result in the case was driven by this fact. Increasingly, many courts are reluctant to impose strict “supervisor” liability where the employer fully addresses and ends the harassment.