The U.S. Court of Appeals for the Fourth Circuit has recently held that under South Carolina law, an assistant manager constituted a “supervisor” for purposes of bringing a sexual harassment claim.
In Whitten v. Fred’s Inc., 4th Cir., No. 09-1265, 4/1/10, the 4th Circuit held that the test to determine whether a harasser is a supervisor is whether the “complained-of conduct was ‘aided by’ the agency relationship between the alleged harasser and employer” and not simply whether the harasser had the power to take “tangible employment action” against the complainant, as determined by the lower court.
In Whitten, the victim was subjected to name calling by the store manager and told that in order to have long weekends off, she needed to “be good to [him] and give [him] what he wanted.” The store manager also touched her inappropriately and made her stay late and denied work days off when she failed too respond to his overtures.
The victim then complained to the store operations and district managers but was told she was overreacting. She then resigned, feeling it was her only option.
In order to support a claim of sexual harassment, the victim must prove either a hostile work environment or an abusive work environment. Since the victim was only employed 2 days, the court determined that in order for a claim for sexual harassment to stand, she must prove an abusive work environment.
In order to show an abusive work environment, the victim must be able to impute liability to the employer for the conduct of its store manager. Although the lower court determined that the store manager was not a “supervisor” and thus, the company was not liable for his actions, the 4th Circuit disagreed, reasoning that a harasser can be considered a victim’s supervisor (thus rendering the employer suspect to vicarious liability) even without the power to hire, fire or discipline. If the harasser can assign work hours and make the victim work extra hours or an inconvenient schedule as punishment for not giving into to sexual demands, he is using the authority granted by the employer to perpetrate the harassment and may be liable for the harassment.
However, even if the victim is able to establish a claim for sexual harassment, the employer may be able to dismiss the case on summary judgment using the Faragher/Ellerth affirmative defense to liability for supervisory harassment. The Faragher/Ellerth affirmative defense provides that an employer may avoid liability if it can demonstrate that it took “reasonable care to prevent and correct promptly any harassing behavior” and the victim “unreasonably failed to take advantage” of preventative opportunities.
Sexual harassment is one of the most well-known forms of employment discrimination. The circumstances surrounding each case vary and courts constantly struggle to define what is sexual harassment and what is not. If you have questions regarding sexual harassment at work or any type of workplace discrimination, please contact Buckley Bala Wilson Mew LLP for more information.