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Workplace Harassment isn’t Always an Abuse of Supervisory Power

Fair Practice: What if a Subordinate Harasses a Supervisor?

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Carl Moore

February 28, 2013 | Views: 6205 | Fair Practice | Comment

Last month we discussed "Zero Tolerance" policies and what they mean. The case we discussed involved a supervisor who filed an EEO complaint against a subordinate for sexual harassment (female supervisor and male subordinate). This formerly rare situation is occurring more and more frequently.

The Situation

The appellate court that considered the case we discussed last month noted that it found only one other case in the nation where a supervisor filed a complaint of harassment by a subordinate. I found that to be interesting because in recent years, I have had more and more supervisors ask whether a supervisor can be harassed by an employee. The question raises an intriguing issue.

Discussions of the issue invariably reveal that people believe that harassment is about power and the abuse of power. When people talk about abuse of power in the workplace, the assumption is that the supervisor is abusing her/his power by harassing an employee. In fact, the only trial court to address the issue of an employee harassing a supervisor made the same assumption.

The Decision

In what was apparently the first reported case of a supervisor suing an employer for harassment by a subordinate, the trial court dismissed the lawsuit because "sexual  harassment in the workplace is essentially an abuse of power," and the prohibition against workplace harassment is designed to protect “powerless employees who have no other legitimate avenue of relief.”

The trial court also reasoned “that supervisors, as agents of the employer, have the responsibility to prevent sexual harassment in the workplace” and “that permitting supervisors to sue employers for the harassment by subordinates would subject employers to the ‘ultimate Catch-22' by forcing them to hire supervisors to watch supervisors, and so on.” The trial court, a State court in West Virginia, dismissed the supervisor’s lawsuit. However, The West Virginia Supreme Court, relying on federal law and Supreme Court decisions, reversed the trial court’s decision.

The W.V. Supreme Court found that the employer’s liability was not different simply because the complainant was a supervisor and the conduct came from a subordinate of the supervisor. Noting that each case will turn on its own particular circumstances, the court stated as an example the situation in which a supervisor complains to her employer of a subordinate's harassment and the employer responds, "You take care of it."

If the supervisor has full disciplinary authority, and circumstances permit use of it, that should settle the matter. However, that same employer response may be, in other circumstances, inadequate. The harassed supervisor could be the object of an entire crew of male harassers and would likely need greater assistance from her employer than a flippant, "You handle it." The court also noted that the power to discipline a six-foot, five-inch, 300-pound ex-felon with a history of violence may not be terribly comforting to a lot of female supervisors. The court concluded, “The point is that common sense must be applied to the facts in each case to determine whether the employer took direct and prompt action ‘reasonably calculated to end the harassment.’" Hanlon v. Chambers, 464 S.E.2d 741 (WV S.Ct. 1995)

The situations I have encountered with supervisors asking whether they could file an EEO complaint over harassment by a subordinate involved the first hypothetical described by the court. These have been supervisors who had reason to believe that their manager would not support their effort to discipline a subordinate for harassing behavior directed toward her/him, and that invoking the EEO complaint process was a more effective way of raising the issue. In short, the supervisor was a woman or a minority who did not feel supported by management.

Bottom Line

As our management ranks become more diverse, it is important that everyone on your management team understand their responsibilities in preventing disrespectful and harassing behavior. The supervisor can demand that every employee be respectful toward every other employee and to the supervisor. Likewise, supervisors have a responsibility to treat every employee with respect, even when they are in serious disagreement over a workplace issue.

 

 

About the Author

Carl D Moore, Esq. is a senior consultant with NewPoint Strategies. He is also the author of TRUST: Short-Circuit the Hardwiring! – a book about EEO law and building trusting workplace relationships in order to avoid complaints, grievances, and law suits. To order, go to www.fuzepublishing.com.

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