Fourth Circuit Ruling - Managers & Sexual Harassment

Fourth Circuit Revives Sexual Harassment Claim Where Manager Told Employee That She Was "Overreacting" by Reporting Alleged Misconduct

In Whitten v. Fred's, Inc. , the plaintiff was hired as assistant manager. During the first two days of her employment, the store manager allegedly twice pressed his groin against Whitten as he passed by her. According to Whitten, the manager also called her stupid, told her that he would make her life a living hell if she complained to management and assigned her additional shifts for no apparent reason. Before going to work the third day, which was a Sunday, Whitten called her district manager and told him about the manager's alleged misconduct. The district manager allegedly told her that she was overreacting, that she should go ahead to work and that they would sit down with the manager on Monday to discuss the situation. In response, Whitten resigned. She then sued Fred's for allowing a sexually hostile work environment in violation of the South Carolina Human Affairs Law.

The district court granted summary judgment in the employer's favor, holding that Fred's was not vicariously liable for the manager's behavior because he did not have the authority to hire, fire, demote or otherwise economically affect Whitten, and therefore did not qualify as her "supervisor." The court further held that Fred's was not negligent because Whitten told people that she intended to quit before she reported the alleged harassment to Fred's management.

On appeal, the Fourth Circuit vacated the district court's grant of summary judgment and remanded the case for trial. The Court held that a manager can qualify as a "supervisor" and thereby subject the employer to vicarious liability if he has sufficient power and authority to make the employee vulnerable to his misconduct. Here, the manager's authority to set Whitten's schedule and assign her tasks was considered sufficient to render him a "supervisor." In addition, the Court held that the district manager's response to Whitten's complaint was arguably unreasonable because he did not take Whitten seriously enough.

This case is an important reminder that managers must treat employees who report sexual harassment with utmost respect. On the surface, the district manager's alleged response to Whitten's claims-in particular, telling her that they would discuss her claims with Green on Monday-might seem reasonable. But because he arguably belittled Whitten by telling her that she was overreacting, he left room for a jury to find that he refused to take her claims seriously. As a result, the employer now faces an expensive jury trial and, potentially, substantial liability.

ParkerPoe, EmployNews,Issue 565

Note: Rulings by the Fourth Circuit apply to NC and SC as well as several other southern states. Rulings from this Court effect how we intrepret federal, state and other laws applicable to these states.

It is important to remember that supervisors and manager's are agents of your company and can result in EEO charges and lawsuits. Whether or not "we" as employers interpret the individual as a "supervisor" or not is irrelevant to what the EEOC and Court may decide.

Those of you who have had my Sexual Harassment Avoidance training will recognize some of the comments above. It was mandated by the U.S. Supreme Court in 1998 that all employers are obligated to train their employees, annually, regarding sexual harassment avoidance and anti-discrimination practices.

A legally reviewed employee handbook, ADA and EEO compliant job descriptions, an effective hiring process and supervisory and management training can help avoid some costly mistakes not only in hiring employees in general but in partidcular hiring and promoting supervisory personnel. I

If you need assistance in setting up these or any other employment related procedures, please contact me at TheWhitfordGroup@aol.com.