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For New York employers, the minefields of employment discrimination just got a bit more treacherous. Management lawyers expressed dismay at a little-noticed opinion by the 2nd U.S. Circuit Court of Appeals last month. In Mack v. Otis Elevator Co., 326 F.3d 116, the court rejected a bright-line test defining supervisors in the context of a hostile environment claim in favor of a broader, more fact-specific inquiry. By doing so, management lawyers say, the court not only increased the odds that an employer could be found liable for harassment, but also threw into confusion the factors that play into that calculus. “What they’ve done is create all sorts of supervisors [in the harassment context] out of employees who are not supervisors under any other definition,” said John Canoni, head of the labor and employment practice at Nixon Peabody. Some plaintiffs’ lawyers agreed that the decision made it a little harder to advise their clients. But they said the ruling makes sense. “Arbitrary bright-line tests have to give way before actual reality,” said Anne Golden of Outten & Golden. The court’s ruling built on a pair of 1998 U.S. Supreme Court decisions, Burlington Indus. v. Ellerth, 524 U.S. 742, and Faragher v. City of Boca Raton, 524 U.S. 775, holding employers vicariously liable for a supervisor’s harassing behavior that continues despite employee complaints. The justices left open the definition of “supervisor.” But a year later, in Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, the 7th Circuit held that an employee had to have economic, or “hire and fire,” authority over the plaintiff, to make him or her a supervisor. Most of the courts since, including the 4th Circuit and several district courts in the 2nd Circuit, have followed Parkins. So it came as a surprise to many management lawyers when in a decision by Judge Robert Sack, the 2nd Circuit panel found last month that a broader definition of the term supervisor was warranted. The test, the panel found, should be whether the authority given by the employer has “enabled or materially augmented the ability of the employee to create a hostile work environment.” TITLE VII CLAIM The case arose from a suit brought under Title VII of the Civil Rights Act of 1964, the main federal anti-discrimination statute in the employment context, by Yasharay Mack, an elevator mechanic’s helper for Otis Elevator Co. She was assigned to help six mechanics in the Met Life (formerly Pan Am) building in New York City. Under the union contract, one mechanic was designated “mechanic in charge,” a non-supervisory position with the right to assign work and direct the work force. Although the official supervisor, Phil Gallina, had an office at the site, he was rarely there. Mack claimed that from day one, the mechanic in charge, James Connolly, made frequent sexual comments about her appearance, changed his clothes in front of her, boasted of his sexual exploits and on one occasion, pulled her onto his lap and tried to kiss her. She said she repeatedly complained to her union shop steward and Gallina to no avail. The employer argued that Connolly was not a supervisor, because all he really did was distribute work assignments. The lower court agreed, citing the 7th Circuit’s Parkins decision. In reversing, the court of appeals said that its 7th Circuit brethren had defined supervisor too narrowly. Connolly, it opined, was Mack’s supervisor because, as the senior employee on the site, he possessed a “special dominance” over Mack and the others. And Gallina’s absence meant there was no one superior to Connolly to check his misbehavior. Canoni said the 2nd Circuit’s “watered-down” definition blurs the distinction between co-workers and supervisors to a point where it “virtually disappears.” Under this theory, even a co-worker who takes over for the day because the regular supervisor is out sick could be deemed a supervisor, he said. He added that the 2nd Circuit’s definition of supervisor confuses things even more because it diverges from the definitions set forth by the National Labor Relations Board and the Fair Labor Standards Act. But Vincent Blackwood, a lawyer with the U.S. Equal Employment Opportunity Commission who submitted an amicus brief in the case, said that in the employment arena, differing definitions “happened all the time.” For instance, just last month in Clackamas Gastroenterology Associates P.C. v. Wells, 01-1435, the U.S. Supreme Court ruled that a person could be an employee for purposes of workers compensation but not the Americans with Disabilities Act. From a practical perspective, Jay W. Waks, who chairs the labor and employment practice at Kaye Scholer, said that employers need to rethink their training programs. “You need to let people in a leadership position know that just because they don’t have hire and fire authority, they can still incur liability,” he said. Waks said the 2nd Circuit was taking an ends-oriented view of vicarious liability. “They’ve bootstrapped the determination of supervisory authority to the harassing act,” he said. But Philip M. Berkowitz, a partner at Seyfarth Shaw, said he did not think the decision “transformed everyone in the corporate hierarchy into a supervisor.” The case could be limited to its facts, namely, a remote site with an absentee supervisor, he said. On the legal front, the decision is “tailor-made” for the U.S. Supreme Court, Nixon Peabody’s Canoni said. “You’ve got an important Supreme Court decision that left a critical term undefined,” he said. And with Mack, “we now have the circuits going different ways.” The lawyer for Otis Elevator, Kenneth Gage of Day, Berry & Howard in Stamford, Conn., said he had not yet decided whether to petition for certiorari. “We are still considering our options,” he said. Mack’s lawyer, Saul Zabell of Somma, Zabell & Associates of Farmingdale, N.Y., said he would welcome the opportunity. He said when Gage suggested he might appeal, “the hairs stood up on the back on my neck.” “I believed in this case from day one,” said Zabell, who said his practice is split between representing management and employees. “I would like nothing better than to argue this case before the Supreme Court,” he said.

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