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Duties, not title, determine harasser’s status

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in Discrimination and Harassment,Human Resources,Leaders & Managers,Management Training

Employees whose supervisors sexually harass them have a fairly easy time winning their cases. Courts expect employers to carefully train supervisors so they don’t engage in any type of behavior that could be construed as sexual harassment.

But courts are much more lenient when the alleged harasser is a co-worker. In fact, they often give employers the benefit of a doubt if they act promptly.

That means employers can relax a little if an employee complains about a co-worker. Fortunately, the alleged harasser’s title isn’t the deciding factor. Instead, courts look to the actual job responsibilities.

Recent case: Hopelynn Neely worked at a McDonald’s restaurant. When a new male assistant manager trainee arrived on the scene, Neely began to experience what she perceived as sexual harassment. She claimed the trainee touched her inappropriately and called her “babe.”

Neely complained to the store manager, who brought the matter to HR. It investigated and told the trainee that he would be terminated if he sexually harassed anyone. Since there was no direct evidence (the surveillance camera at the restaurant was broken), he got away with a warning.

The restaurant did put Neely on a different shift so she wouldn’t have to interact with the man. Later, their shifts again overlapped and Neely quit after again complaining. She sued, alleging supervisor harassment.

McDonald’s argued that the assistant manager trainee didn’t have any supervisory powers. He could not hire or fire, make schedules, assign employees to work at particular stations or discipline them.

The court said that meant he was a co-worker, not a supervisor. That saved the restaurant from liability, because the actions management took after Neely complained were reasonable and calculated to stop further harassment. (Neely v. McDonald’s, No. 07-2186, 3rd Cir., 2009)

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