The U.S. 6th Circuit Court of Appeals—which covers Kentucky, Michigan, Ohio, and Tennessee—recently affirmed a lower court’s decision to dismiss an employee’s same-sex sexual harassment claim after determining that the supervisor lacked the ability to take tangible employment action against the employee.
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Facts
“Tom,” began working as a shift manager for U.S. Steel in 2011. In 2013, he was reassigned and began working with “Jerry,” a process coordinator. Jerry was responsible for overseeing maintenance activities and supervising hourly employees. Tom reported to the area manager, but he worked under Jerry’s instruction. Jerry trained Tom and assigned him tasks.
Tom alleged that Jerry engaged in inappropriate acts and sexual conversations, including often asking about his sex life. Tom said he went along with the conversations because he believed his employment depended on Jerry’s approval of him. Jerry allegedly grabbed Tom’s penis while the men were in an elevator. Also, he allegedly grabbed Tom’s buttocks and said he had a “nice firm ass.” Tom testified that Jerry poked another employee with a banana that was sticking out of the fly of his pants. Further, Tom claimed that Jerry tried to emasculate him by making him fetch coffee and saying he was “well trained.”
In January 2014, Tom complained about the inappropriate touching, emasculating conduct, and banana incident to division manager “Adam.” Adam informed the area manager and the employee relations manager of Tom’s complaint. The employee relations manager suggested that U.S. Steel separate Tom and Jerry. Tom met with management and HR, which offered to transfer him to the environmental department. Tom agreed to the new assignment.
Management and HR representatives met with Jerry about Tom’s complaint. Jerry admitted grabbing Tom’s buttocks but stated he was just joking around. Jerry was given a 1-week unpaid suspension and was demoted to shift manager, with no loss in pay. He also received a verbal warning and was required to take “people skills” training.
Later, Tom resigned from U.S. Steel after a fatal crane accident. He claimed that working with Jerry was part of the reason for his resignation. Tom filed a lawsuit against Jerry and U.S. Steel alleging that he was subjected to a hostile work environment based on same-sex sexual harassment.
The district court held that Tom did not prove that any harassment he endured was based on his sex. Further, the court determined that Tom did not establish that U.S. Steel was liable for harassment because Jerry was not his “supervisor.” Tom appealed the decision to the 6th Circuit.
Court’s Decision
The 6th Circuit affirmed the district court’s decision to grant summary judgment (dismissal without a trial) in favor of U.S. Steel. The court determined that U.S. Steel could not be held vicariously liable for Jerry’s behavior. Employers are vicariously liable for supervisors’ harassing conduct.
An employee is a supervisor if he has the power to take tangible employment actions against the harassment victim. Tangible employment actions are actions that cause “a significant change in the victim’s employment status.”
Tom argued that Jerry was a supervisor because U.S. Steel referred to him as “supervisor” and Jerry called himself a supervisor as well. However, the court reiterated that “colloquial uses of ‘supervisor’ do not control the question of whether an employee is one.” Because Jerry could not take tangible employment actions against Tom, the court determined that Jerry was not a “supervisor” for purposes of Tom’s sexual harassment claim under Title VII of the Civil Rights Act of 1964.
Further, the court found that U.S. Steel responded to Tom’s complaint appropriately. An employer’s response to sexual harassment is “adequate if it is reasonably calculated to end the harassment.” Tom admitted that transferring him to another department and disciplining Jerry put an end to the sexual harassment. Thus, the court determined that U.S. Steel was not vicariously liable for Jerry’s conduct and dismissed Tom’s claim against the company. Hylko v. U.S. Steel Corporation, No. 16-2414 (6th Cir., Oct. 3, 2017).
Takeaways
Whether an employee is a supervisor can make all the difference in a sexual harassment claim. Employers facing sexual harassment complaints, charges, or lawsuits should conduct a thorough analysis of the alleged harasser’s status to determine whether he is a potential “supervisor” for purposes of Title VII.
Conducting the analysis will help employers determine whether they are potentially vicariously liable for sexual harassment based on a supervisor’s conduct. Further, employers should review their harassment policies to ensure that employees have multiple reporting avenues. Finally, if an employee complains of harassment, take prompt and effective action to end the harassment.
Jourdan D. Day, of Porter Wright Morris & Arthur LLP in Columbus, is a contributor to Ohio Employment Law Letter and can be reached at 614-227-1980 or jday@porterwright.com.