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October 14, 2003
Ruling Expands Definition of 'Supervisor' in CT, VT
Yasharay Mack, an African-American woman, was hired as an elevator mechanic’s helper for Otis Elevator. She assisted six mechanics in the Metropolitan Life Building in New York City. The bargaining agreement covering Mack and her co-workers stipulated that one mechanic will be designated as the "mechanic in charge" when there are more than five workers on one job. The mechanic in charge—James Connolly—had "the right to assign and schedule work, direct the workforce, assure the quality and efficiency of the assignment, and enforce the safety practices and procedures."

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On her first day on the job, Connolly made several comments (privately and in front of co-workers) to Mack about her good looks, some of which included sexual overtones. He then began to regularly change out of his uniform in front of her at the end of the shift and frequently made derogatory remarks about her gender and race as it related to her job. On one occasion, he grabbed her in front of the other mechanics, pulled her to his lap, and tried to kiss her.

Mack complained to Connolly’s supervisor and asked to be reassigned. She also complained to co-workers (who sometimes participated in the alleged abuse) as well as a union shop steward. The situation got progressively worse, and Mack’s father finally contacted the union complaining of his daughter’s treatment. A meeting was arranged with a union representative, a company representative, Mack, and her father. It resulted in a promise to investigate her complaint and an offer to be transferred to another project.

However, Mack never returned to work. Instead, she sued Otis for creating a hostile work environment.

Otis argued that Connolly was not a supervisor and therefore, the company was not liable. Reversing a lower court decision, the U.S. 2nd Circuit Court of Appeals--which covers Connecticut, New York and Vermont--ruled that Connolly, although not Mack’s official supervisor, acted as such. The Court explained that Connolly possessed a "special dominance" over Mack, especially because her actual supervisor was rarely there. Specifically, he directed the particulars of each of Mack’s workdays, including her work assignments. The court wrote, "We conclude from facts undisputed in the record on this appeal Connolly’s authority over Mack, bestowed upon him by Otis, enabled him, or materially augmented his ability, to impose a hostile work environment on her." Mack v. Otis Elevator Co., 2nd Cir., 326 F.3d 116, (8/29/03).

The Court in this case has expanded the definition of supervisor from the Supreme Court cases of Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries v. Ellerth, 524 U.S. 742 (1998), which did not define the term "supervisor".

The result? Employers in Connecticut and Vermont may have to begin training "senior" employees in sexual harassment matters to avoid liability. As the term "supervisor" is ambiguous at best, it would not be a surprise if other circuit courts relied on this ruling.

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