Executive Summary: Recently, the United States Court of Appeals for the Sixth Circuit in Hylko v. U.S. Steel Corporation affirmed the district court’s grant of summary judgment to the employer in a lawsuit alleging same-sex sexual harassment under Title VII of the Civil Rights Act of 1964 (Title VII) and the Michigan Elliot-Larsen Civil Rights Act (ELCRA), finding that the plaintiff failed to establish that the employer was vicariously liable for the alleged sexual harassment. The Court of Appeals found that the alleged harasser was not a supervisor under Title VII, since he “was not authorized to effect a significant change in [the plaintiff’s] employment status.” The Sixth Circuit also rejected the plaintiff’s argument that the employer should be held liable under a co-worker liability theory, since the employer, among other things, transferred and demoted the accused harasser following the plaintiff’s complaint, which admittedly ended the harassment.
Background of the Case
The plaintiff, David Hylko, Jr. (Hylko), and the accused harasser, John Hemphill (Hemphill), worked at a U.S. Steel plant. Hylko, a shift-manager, and Hemphill, the process coordinator, worked closely together. Hemphill trained Hylko and assigned his duties, and both reported to the Area Manager, who reported to the Division Manager. Hylko claimed that Hemphill asked him about his sex life on a regular basis, which made Hylko “uncomfortable.” Hylko further claimed that Hemphill grabbed his buttocks on two occasions, and on one occasion grabbed his penis. Additionally, Hylko claimed that on another occasion, Hemphill placed a banana in his zipper and “poked” another employee with it.
Hylko eventually complained about Hemphill’s behavior to the Area and Division Managers and to human resources. Hylko accepted a transfer to another area of the facility to avoid working with Hemphill. When questioned, Hemphill admitted grabbing Hylko’s behind and the “banana” incident. Hemphill was issued a verbal warning and given a one-week suspension. He was also demoted to shift manager and directed to take a leadership class. Following the discipline, Hemphill did not harass Hylko again. Hylko resigned his employment a few months later and filed a lawsuit against Hemphill and U.S. Steel alleging same-sex sexual harassment in violation of Title VII and the ELCRA. The district court granted summary judgment in favor of the defendants and Hylko appealed.
The Sixth Circuit’s Decision
The Court of Appeals began its analysis by reviewing the essential elements of a claim for sexual harassment. The court stated that a plaintiff must show: “(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.” The court then moved to the third element noting that “[a]n employer is vicariously liable for the harasser’s conduct if he is the employee’s supervisor.” The Court of Appeals examined the United States Supreme Court’s decision in Vance v. Ball State University, 133 S. Ct. 2434, 2439 (2013), which established the definition of a “supervisor” under Title VII. The Court of Appeals stated that an employee is a supervisor “if he is ‘empowered by the employer to take tangible employment actions against the victim.’” Id. at 2454. The Court of Appeals further stated that the Supreme Court in Vance defined “[a] tangible employment action [as] one that effects ‘a significant change in [the victim’s] employment status[.]’” Id. at 2443. The Sixth Circuit found that Hemphill was not a supervisor under Title VII despite his ability to assign work to Hylko and make recommendations as to discipline, since Hemphill did not have the “authority to promote, to demote, or to fire” Hylko. In short, the Court of Appeals found that Hemphill “was not authorized to effect a significant change in Hylko’s employment status.” The Court of Appeals rejected Hylko’s argument that Hemphill should be deemed to be his supervisor because both Hemphill and the employer referred to him as such. In the court’s view this was insufficient, since Hemphill did not meet the “legal” definition of a supervisor. The Court of Appeals also rejected Hylko’s argument that Hemphill should be deemed to be his supervisor since Hylko “reasonably believed” that to be the case, noting that this argument was waived because it was not raised before the district court.
Finally, the Sixth Circuit rejected Hylko’s argument that the employer should be liable for the alleged harassment under a co-worker liability theory, since the employer took appropriate action to end the alleged harassment after Hylko complained. The court noted that that “a response is adequate if it is reasonably calculated to end the harassment.” (quoting Waldo v. Consumers Energy Co., 726 F.3d 802, 814 (6th Cir. 2013)).
The Court of Appeals concluded its analysis by finding that there was no basis to reverse the district court and affirmed the grant of summary judgment.
Employers’ Bottom Line: The Sixth Circuit’s decision in Hylko highlights the restrictive definition of supervisor status adopted by the Supreme Court in Vance. An employee’s ability to assign work and make recommendations relative to another employee, and even workplace references to the employee as a supervisor, are insufficient to confer supervisory status under Title VII without evidence that the individual is authorized to effect a significant change in the purported subordinate’s employment status.