That is the finding of the 2nd U.S. Circuit Court of Appeals in Mack v. Otis Elevator Co. , which broadens the definition of what constitutes a supervisor in the context of a hostile environment claim. With the ruling the court reversed previous findings by the 7 th Circuit court that said an employee had to have “hire and fire” authority over a subordinate to be considered a supervisor, according to a New York Law Journal report.
Yasharay Mack, an elevator mechanic’s helper for Otis Elevator Co. brought suit under Title VII of the Civil Rights Act of 1964. The suit stemmed from sexual advances made by a union contract designated “mechanic in charge,” James Connolly.
Among the allegations were that Connolly
made frequent sexual comments about Mack’s appearance,
changed his clothes in front of her, boasted of his sexual
exploits and on one occasion, pulled her onto his lap and
tried to kiss her. Mack contends she repeatedly complained
to her union shop steward and Connolly’s supervisor by to
The employer argued that Connolly was not a supervisor, because all he really did was distribute work assignments. The lower court agreed, citing the previous 7th Circuit’s decision.
However, the appellate court of found the 7th Circuit had defined supervisor too narrowly. Connolly, it opined, was Mack’s supervisor because, as the senior employee on the site, he possessed a “special dominance” over Mack and the others. Further, the absence of Connolly’s supervisor meant there was no one superior to Connolly to check his misbehavior.
Management attorneys are concerned the decision will expose employers to additional liability for harassment claims, as well as confusion resulting from the more fact-specific definition the court outlined. “What they’ve done is create all sorts of supervisors [in the harassment context] out of employees who are not supervisors under any other definition,” said John Canoni, head of the labor and employment practice at Nixon Peabody.
The case is Mack v. Otis Elevator Co. , 326 F.3d 116.