Now that the U.S. Supreme Court has recently defined who is a “supervisor,” can employers finally relax and cut down on their employment liability insurance? Nope. Not so fast. One court recently ruled that even a manager who can’t “hire, fire or discipline” can still hold a company responsible for Title VII harassment liability if he or she fails to send an employee’s complaint to the correct links on the corporate chain.
Case in Point: McKinley, a concrete yard worker in Illinois, complained to supervisors that one of his fellow male co-workers, Hugo, engaged in a lot of same-sex harassment on the job. McKinley said Hugo would often tell him he “has a beautiful ass,” would touch his buttocks, stare at his genitals and spy on him in the bathroom. McKinley complained about Hugo to two supervisors many times but they never took any action.
The company had no written anti-harassment policy during most of the years this was going on. Eventually, the company implemented a policy requiring reporting of incidents to the HR manager who worked in another state or the CEO. McKinley never reported Hugo’s actions to either one of them.
One day, McKinley was fired for allegedly violating another policy. He sued the company under Title VII for sexual harassment. The company denied the claim because he failed to complain to the proper company authorities.
Ruling: The court ruled in favor of McKinley, noting that the supervisors, who were responsible for reporting “anything that was going wrong” to a yard manager, could “reasonably be expected to refer the complaint up the ladder to the employee authorized to act on it.” (Lambert v. Peri Formworks Sys., Inc.,7th Cir., No. 12-2502, 7/24/13)
3 Lessons Learned…Without Going to Court
- Think outside the ladder. Regardless of what the Supreme Court just ruled as to who is and isn’t a supervisor, the lower courts are still holding leads and leaders responsible for “reporting up” harassment, discrimination and retaliation. So train them all about how and when to use your reporting ladder.
- Check out your ladder. The company had designated two off-site corporate representatives to receive complaints. But, as the court said, that “does not license on-site managers to ignore complaints and evidence of harassment.” So, review who is designated to receive complaints and if they are really accessible.
- Extend your ladder. Having only two rungs (HR and CEO) on the complaint-hearing ladder just isn’t enough, especially in multi-state operations. The court said reporting practices should be “practical.” From that perspective, consider adding others to the reporting ladder for employees to seek out to report claims of harassment, discrimination and retaliation.