Affirming summary judgment for the employer in Joens v. John Morrell & Co (8th Cir. 1/14/04), the Eight Circuit Court of Appeals concluded the alleged harasser, a foreman in a different department, was not the plaintiff’s supervisor.
He had no direct authority to control the work of employees in the plaintiff’s department. Like all foremen, he had authority to “write up” any hourly employee, including the plaintiff, for job performance deficiencies. However, only the HR department actually had the power to discipline, and the alleged harasser never wrote up the plaintiff or otherwise complained to management about her job performance.
The court acknowledged that two different definitions of “supervisor” have been used in harassment cases in other circuits, citing cases from the 7th and 4th Circuits requiring the power to take tangible employment action against the employee, and a 2nd Circuit case requiring only authority to direct the employee’s daily work activities. The district court opinion which the 8th Circuit affirmed in this case had chosen the former, narrower definition. The 8th Circuit did not expressly adopt this standard, apparently finding the alleged harasser not a supervisor under either standard.
The significance of this issue in harassment cases is that a somewhat different legal analysis applies, depending on whether the alleged harasser is the plaintiff’s supervisor, or just a coworker.
If supervisor, the company is strictly liable, unless it can prove it acted reasonably to prevent and correct harassment and the plaintiff failed to act reasonably to take advantage of complaint procedures or otherwise prevent harm.
If coworker, the employer is only liable if it knew or should have known of the harassment but failed to take appropriate remedial action.
As a practical matter, in many cases this is not that significant of a difference – if harassment is proven, the employee’s efforts to complain, or lack thereof, and the employer’s corrective action, will be dispositive of the case, whether arassment was by a supervisor or a coworker. In a close case, however, the shifted burden of proof where a supervisor is involved can be very important.
The company here was wise to retain disciplinary authority in the HR department, as this helped it downplay the authority of the foreman. Such a policy has many other advantages, such as helping ensure uniformity and fairness of discipline and insulate decisionmaking from discriminatory attitudes of lower-level supervision (see yesterday’s post on the Lockheed case).
A second reason for the decision in favor of the company was that there was no evidence the harassment was based on sex (it was not sexual in nature), and the plaintiff never complained that she felt it was so based. She was just subjected to mean, rude, and impatient conduct, including swearing and “abusive criticism,” conduct which could equally have been directed at men — and there was no evidence it was not.
This illustrates a couple of common misconceptions about liability for “harassment.”
First, some employees seem to think the law protects them against generic “harassment” such as disrespectful, rude, mean, unreasonable, pushy supervision. It does not; only if the harassment is based on a protected characteristic is there a legal remedy. (Which is not to recommend such “equal opportunity harassment” as a desirable management style; only to point out its lawfulness.)
Second, some people think sexual harassment must involve sexual topics or behavior. It need not; if the conduct is sufficiently offensive and is directed at its target because of their gender, it may be unlawful.
Third, not all mention of sexual topics is sexual harassment, even if some people are offended. Again, if it is participated in equally by men and women (and equally offensive to some of each gender) obscene remarks, sexually-oriented jokes, etc. may not be unlawful (but still should be strictly prohibited).
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