Sixth Circuit: Employer Not Vicariously Liable for Coworker Harassment

By: Karen L. Piper

Employers may be faced with increased reports of sexual harassment by their employees due to recently publicized allegations of sexual harassment against some high profile individuals.  This presents a good opportunity to review the issue of employer liability, as outlined in the Sixth Circuit Court of Appeals recent decision in Hylko v. Hemphill, Case No. 16-2414, unpublished (Oct. 3, 2017).

David Hylko and John Hemphill worked at a U.S. Steel plant in Ecorse, Michigan.  Hemphill trained Hylko.  Both employees reported to the Area Manager, who reported to the Division Manager.  Hylko reported several incidents of sexual harassment by Hemphill to the Area and Division Managers and two Human Resources Managers.  Hemphill admitted that he had engaged in some of the actions Hylko had reported as harassment.  Hemphill was given a verbal warning, a one-week suspension, demoted to Shift Manager and required to take a leadership class.  Hylko accepted a transfer to another area of the plant.  Though they had some contact after that, Hemphill did not harass Hylko again.

A few months later Hylko resigned and sued U.S. Steel for sexual harassment.  Hylko claimed U.S. Steel was liable for Hemphill’s harassment because Hemphill: 1) assigned work to Hylko; 2) made recommendations to their manager about disciplinary action for Hylko; and 3) was referred to by Hemphill, himself, and others as Hylko’s “supervisor.”

The Sixth Circuit reviewed the U.S. Supreme Court’s rulings on employer liability.  An employer is liable for sexual harassment between coworkers, if the employer knew or should have known of the harassment and failed to take appropriate remedial action.  An employer is vicariously liable for a supervisor’s sexual harassment of another employee, even if it did not know and had no reason to know of the harassment.  The reason is a supervisor is “empowered by the employer to take tangible employment actions against the victim.”  Tangible employment actions are those that produce a “significant change” in the “victim’s” employment status, e.g., promotion, demotion, termination.

The Sixth Circuit affirmed dismissal because Hemphill was not Hylko’s supervisor.  The assignment of work, recommendations regarding disciplinary action and “colloquial” use of the title supervisor did not make Hemphill a supervisor.  Hemphill had no authority to effect a significant change in Hylko’s employment.  Since Hemphill was not Hylko’s supervisor, U.S. Steel was not automatically liable for Hemphill’s harassment of Hylko.  U.S. Steel also was not liable for coworker harassment of Hylko.  It had responded promptly to Hylko’s report of harassment and taken appropriate (and effective) remedial action to end the harassment.

The employer was not liable because the alleged “harasser” was not a supervisor and the employer acted promptly on the “victim’s” report.  Questions about whether an alleged harasser is a supervisor or about how to respond to an employee’s report of harassment should be discussed with experienced employment counsel, such as the author.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or kpiper@bodmanlaw.com. For further information, go to:  http://www.bodmanlaw.com/attorneys/karen-l-piper.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information are included in the re-post of the article. October 2017.