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."
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.
