Second Circuit Adopts Expansive Definition of "Supervisor" Under Title VII
In a recent decision, the U.S. Court of Appeals for the Second Circuit in New York adopted a broad definition of "supervisor" for purposes of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and thereby expanded the circumstances under which an employer may be held liable for workplace harassment. Mack v. Otis Elevator Co., 326 F.3d 116 (2d Cir. 2003).
Title VII outlaws discrimination in employment on the basis of sex and various other protected characteristics and, as construed by the courts, prohibits harassment of employees on the basis of these characteristics. As the U.S. Supreme Court has recognized, one form of unlawful harassment is the creation of a "hostile work environment" -- a workplace "permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the condition of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510
The case arose when Yasharay Mack, who had worked as an elevator mechanic's helper in a building that utilized Otis's elevators, complained that she had been subjected to a hostile work environment because of her sex. Mack was the helper to six mechanics, one of whom, James Connolly, was the "mechanic in charge." According to the applicable collective bargaining agreement, Connolly had the right to "assign and schedule work, direct the workforce, assure the quality and efficiency of the assignment, and to enforce the safety practices and procedures."
Otis moved for summary judgment in the district court, arguing that Connolly was not a supervisor and that Otis could not be held vicariously liable for the creation of a hostile work environment. The district court granted Otis's motion, basing its decision on a case decided by the Seventh Circuit Court of Appeals, Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027 (7th Cir. 1998). In Parkins, the Seventh Circuit ruled that a supervisor is one who has authority that "primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee. Absent an entrustment of at least some of this authority, an employee does not qualify as a supervisor for purposes [of] imputing liability." The district court in Mack found that Connolly possessed certain authority over other employees but that he lacked the authority to impose any of the tangible personnel actions enumerated in Parkins, and that he therefore could not be considered a supervisor for purposes of Title VII.
The Second Circuit rejected this definition as too limited and overturned the district court's decision, finding that a supervisor is any individual with "a special dominance over other . . . employees." Mack, 326 F.3d at 126. In concluding that an individual may be a supervisor even if not empowered to impose tangible personnel actions of the types enumerated in Parkins, the court relied in part on the Enforcement Guidelines on Vicarious Liability for Unlawful Harassment by Supervisors issued by the Equal Employment Opportunity Commission ("EEOC"). The EEOC Guidelines define a supervisor as one who either has the authority to make tangible employment decisions affecting other employees or controls the daily work activities of other employees. The Second Circuit readily found that Connolly controlled the daily work activities of Mack and others, and therefore was properly considered a supervisor.By adopting this expansive definition of "supervisor," the Second Circuit has created a disagreement among the federal appeals courts that will ultimately have to be resolved by the U.S. Supreme Court. In the meantime, the Mack decision underscores, once again, the importance of maintaining and vigorously enforcing policies that foster a harassment-free workplace. Under the Supreme Court's 1998 decisions in Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of