The Lawletter Vol 46 No 5
One of the more difficult issues in the employment discrimination context has been the determination of whether an employee who is charged with misconduct toward another employee is a "supervisor" or a "coworker" for purposes of employer liability under Title VII and related statutes. Initially, the Equal Employment Opportunity Commission ("EEOC") took the position that an individual is qualified as an employee's supervisor if (1) the individual had authority to undertake or recommend tangible employment decisions affecting the employee, or (2) the individual had authority to direct the employee's daily work activities. EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (1999). In its 2013 decision in Vance v. Ball State University, 133 S. Ct. 2434 (2013), however, the Supreme Court narrowed the definition, holding that an employee is a "supervisor" only when empowered by the employer to take tangible employment action—such as hiring, firing, failing to promote, reassigning with significantly different responsibilities, or causing a significant change in benefits—against the employee alleging discrimination. Since then, the lower federal courts have refined this definition in relevant cases.
Recently, the Sixth Circuit Court of Appeals had occasion to consider the effect of a senior manager's delegation of some supervisory authority to a project manager—the alleged harasser—to whom the plaintiff employee had been temporarily assigned. The court noted that, most often, the status of the alleged harasser can be resolved as a matter of law before trial, but when material factual disputes arise about whether the harasser was a coworker or a supervisor, the plaintiff can proceed to trial under both theories. In this case, the project manager was in the employee's "chain of command" while she worked on the project, and she reported directly to him. Additionally, the project manager provided information concerning the quality of her work on the project to the senior manager for her performance reviews. These "indicia of reliance and authoritative input" sufficiently raised a material fact issue concerning whether the senior manager substantially relied on the project manager's recommendations when taking tangible employment actions regarding the plaintiff employee. Due to that reliance, the senior manager could be held to have effectively delegated the authority to take tangible employment actions to the project manager. Thus, the employee's Title VII sexual harassment suit against the employer could proceed on both theories. The case is Wyatt v. Nissan North America, Inc., 999 F.3d 400 (6th Cir. 2021), pet. for reh'g en banc denied (6th Cir. July 30, 2021).