If you can make someone work on Superbowl Sunday, then you may be a supervisor.

Whitten v. Fred’s Inc., No. 09-1265, ___ F.3d ___ (4th Cir. April 1, 2010, amended by order April 26, 2010). [Note: Ordinarily, we do not cover decisions that originate outside of Virginia, but the Fourth Circuit’s decision in this case represents a departure from its prior holdings and will have an effect of cases that are filed in Virginia in the future.]

Whitten, the plaintiff, was an assistant manager for a Fred’s, Inc., store in Belton, South Carolina. Green was the store manager. The details of Green’s behavior toward Whitten are not especially important, but they included belittling comments, inappropriate sexual remarks, overt sexual assault, and making Whitten work on Superbowl Sunday, when she had been scheduled to have the day off. Whitten, who had just transferred in from another store, quit after only two days of this.

Whitten sued Fred’s alleging, among other things, that Green’s behavior created a hostile environment for which Fred’s was liable. To proceed on a hostile environment claim, Whitten would have to show that the offending conduct:

(1) was unwelcome;

(2) was based on her sex;

(3) was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment; and

(4) was imputable to her employer.

Whether and under what standard an employer may be held liable for sexual harassment depends on whether the harasser was a supervisor or merely a co-worker and on whether the plaintiff suffered a tangible employment action. A tangible employment action is something that constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

If the plaintiff’s claim is based on the actions of her supervisor, the employer is subject to liability as if the employer itself had been the bad actor. In supervisor cases, the employer still has available to it an affirmative defense that may protect it from liability or damages, if the plaintiff did not suffer a tangible employment action.

On the other hand, if the employee was harassed by a co-worker rather than a supervisor, the employer can be held accountable only if the plaintiff proves that the employer itself was negligent in failing to take effective action to stop harassment that it knew about (or should have known about).

The district court concluded that Green was Whitten’s coworker rather than supervisor, and that Fred’s was not negligent because Whitten quit before Fred’s had any knowledge of her complaints. The district court concluded that Green was Whitten’s coworker rather than supervisor because Green lacked the authority to fire, promote or demote, or otherwise make decisions that had an economic effect on Whitten. The district court’s list of actions that Green did not have the authority to take largely tracks what courts generally view as tangible employment actions. The district court thus effectively equated supervisory status with the ability to take tangible employment actions. Under the district court’s analysis, if the harasser lacks the authority to take tangible employment actions, then the harasser cannot be the plaintiff’s supervisor. On appeal, the Fourth Circuit disagreed.

The Fourth Circuit noted the existence of authority to take tangible employment action would establish that Green was Whitten’s supervisor, but the absence of that authority did not establish that Green was merely Whitten’s coworker. The Fourth Circuit then looked to see whether Green had power and authority that made Whitten “vulnerable to his conduct” in ways that a co-worker’s comparable conduct would not. The Court noted that their titles “store manager” versus “assistant store manager” strongly suggested that Green outranked Whitten. The Court noted that, for the pertinent time period, Green was the highest ranking employee in the store. Finally, the Court noted that Green (unlike a mere co-worker) had the power to change Whitten’s schedule – to make her stay late and clean the store and to make her work on Superbowl Sunday. The Court found that Green’s authority over Whitten aided his harassment of her and enabled him to create a hostile working environment.

The Court concluded that Green, as matter of law, was Whitten’s supervisor for purposes of her sexual harassment claims. Because Green was Whitten’s supervisor, Fred’s was subject to liability for Green’s conduct.

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