On October 3, 2017, the U.S. Sixth Circuit Court of Appeals held that for a supervisory relationship to exist in Title VII discrimination cases, therefore making the employer vicariously liable, the alleged supervisor must be “empowered by the employer to take tangible employment actions against the victim.” The case is captioned Hylko v. Hemphill). In that case, the Plaintiff Hylko alleged his employer was liable because his supervisor harassed him.
According to Hylko, his supervisor Hemphill began harassing him as soon as they started working together. Hemphill regularly asked Hylko about his sex life. These conversations made Hylko uncomfortable, but he went along because he believed that his “employment hinged on [Hemphill’s] approval[.]”
The harassment was also physical. Hemphill twice grabbed Hylko’s buttocks, saying that Hylko had a “nice firm ass.” Another time, Hemphill grabbed Hylko’s penis in the elevator. When they walked out, Hemphill allegedly did it again and said, “[l]ook, he doesn’t even flinch.” Hylko said that Hemphill grabbed him so hard that it hurt. Yet another time, Hemphill put a banana in the zipper of his pants and poked Hylko’s office mate with it.
Hylko eventually told two human-resource managers about the harassment. They offered to transfer him to a different area of the plant so that he would no longer work directly with Hemphill. Hylko accepted. The four managers then met with Hemphill, who admitted to grabbing Hylko’s behind and the banana incident (they did not ask him about the elevator incident). They gave Hemphill a verbal warning and a one-week suspension, demoted him to shift manager, and made him take a leadership class. Thereafter Hemphill did not harass Hylko again, though the two did still interact occasionally.
Hylko resigned a few months later. Hylko later filed this lawsuit against Hemphill and U.S. Steel asserting claims for sexual harassment in violation of Title VII of the Civil Rights Act, as well as other federal and state laws.
To establish a violation of Title VII based on sexual harassment, the employee must show that (i) the sexual harassment was based on his sex; (ii) the harassment created a hostile work environment; and (iii) the employer is vicariously liable for the conduct at issue.
Under Title VII, an employer’s liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Under this framework, therefore, it matters whether a harasser is a “supervisor” or simply a co-worker.
The U.S. Supreme Court previously held in Vance v. Ball State University (2013) that an employee is a “supervisor” under Title VII only if s/he is “empowered by the employer to take tangible employment actions against the victim.” A tangible employment action is one that effects a significant change in the victim’s employment status.
Here, Hemphill had the authority to assign Hylko his daily duties, but not the authority to promote, to demote, or to fire him. And though Hemphill could recommend disciplinary action against Hylko, other U.S. Steel managers could do what they liked with those recommendations. Thus, Hemphill was not authorized to effect a significant change in Hylko’s employment status and was not his “supervisor” for Title VII purposes.
The Court also disregarded the fact that Hemphill was called a “supervisor” in the workplace. The Court stated: “[C]olloquial uses of ‘supervisor’ do not control the question of whether an employee is one. ‘Supervisor’ has various meanings in business settings, but has a specific meaning for the purposes of Title VII.”
The Court found that the employer could not be liable because it responded reasonably to Hylko’s complaint. It transferred Hylko and disciplined Hemphill in response to Hylko’s complaint. And Hylko concedes that these actions ended the harassment.
Finally, the court disregarded Hylko’s argument that Hemphill should be considered a “supervisor” because he reasonably believed Hemphill was his supervisor. Hylko did not raise the argument in the trial court, and thus waived it.
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