Listen up! Breaking news! It doesn’t really matter whom you label as a supervisor any more. As a way to hold a company liable for sexually harassing conduct by a “supervisor,” one court recently relabeled a co-worker as a “supervisor,” even though this person had absolutely no power to hire, fire, promote, demote or otherwise affect the harassed employee’s job status.
The court, with the support of the EEOC, ruled that just being the “highest ranking employee on site” with the ability to set schedules and dole out discipline makes for a supervisor as a matter of law.
Case in Point: Clara Whitten, an assistant manager for a South Carolina department store, was transferred to another location. A manager at the new store, Matt Green, allegedly pressed his body against her several times and told her that if she wanted long weekends off she needed to be good to him and give him what he wanted.
Green also allegedly threatened her, saying he would make her life “a living hell” if she told the higher-ups. When Whitten failed to properly set the store alarm one day, Green punished her by scheduling her on her day off.
Whitten reported all of Green’s conduct to the district manager. But the district manager responded by telling her she was “overreacting.” He told her to report back to work “as if nothing had happened.”
Ultimately, Whitten quit and sued, claiming sexual harassment and constructive discharge.
The company denied liability. It argued that it couldn’t be held vicariously liable for Green’s conduct because he was not a “supervisor” within the meaning of the law. Reason: Green did not have authority to hire or fire. (Whitten v. Fred's Inc., 4th Cir. 4/1/10)
What happened next and what lessons can be learned?
The lower court agreed with the company and tossed the case out, saying Green was essentially Whitten's co-worker, not a supervisor.
But the appeals court reversed the decision and sent it to trial. It said, “an employee need not necessarily have the power to hire, fire, or affect the job status of an alleged harassment victim in order to be considered a supervisor.” The court took into consideration that Green was often the highest-ranking employee in the store.
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3 Lessons Learned…Without Going To Court
1. Train. Everyone in your workforce must be trained on acceptable and unacceptable conduct. It’s 2010. The national anti-discrimination laws were passed in 1964. What possible excuse could there exist today for lack of sexual harassment training in the workplace?
2. Respond. People in positions to receive complaints must be trained to respond appropriately and immediately. Telling someone they are “overreacting” is like saying “please sue us.” The best way to respond is to say, “Thank you for letting me know.” Then immediately escalate the matter up for prompt effect action so an investigation can take place.
3. Review. Look over all your company locations. Who could be considered the “highest ranking person on site?” Do you feel safe … or scared?
Do your supervisors know the job-interview questions that can result in legal action? Or which words written in performance evaluations are almost GUARANTEED to trigger discrimination lawsuits?
Do they understand the recent changes to employment-related laws, and how the new administration is cracking down on employer mistakes?
If not, their lack of basic employment-law knowledge is putting your organization at risk.
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