In a recent Fourth Circuit Opinion issued on April 1st, Whitten v. Fred’s Inc., the Fourth Circuit Court of Appeals, which covers West Virginia among other jurisdictions, had occasion to revisit an important sexual harassment issue which it touched upon for the first time more than a decade earlier, and addressed most recently about 4 years ago.

In this case, the Plaintiff, Clara Whitten, sued her former employer, Fred’s, for sexual harassment in state court under South Carolina’s Human Affairs Law. The case was moved to federal court and, once there, the District Court dismissed the case. According to the District Court, Fred’s could not be liable for the conduct of the person alleged to be responsible for the behavior – one of Fred’s managers – because that manager didn’t have the authority to fire the Plaintiff, demote her or otherwise make decisions that would have an economic impact on her.

In other words, the District Court felt that the manager wasn’t really the Plaintiff’s supervisor.

On appeal, the Fourth Circuit Court ruled that even though the manager didn’t have the authority to fire, promote, demote or make other decisions that would have some economic impact on the Plaintiff, he still could be her supervisor. According to the 4th Circuit, the focus was more on whether the harassment complained of was aided by the existence of the employment relationship – a question that examines many things, including the titles and rank of the people involved, and whether the person directs the employee’s activities or affects her schedule, among other considerations.

In this case, the Fourth Circuit felt that the manager was the Plaintiff’s supervisor because he directed her activities, controlled her schedule, exercised some authority to discipline her by giving her undesirable assignments, and was the highest ranking employee in the store when the Plaintiff was there. As the Court plainly put it, “[w]e do not believe the supervisory question in this case is a close one,” and it’s hard to disagree.

This ruling is important to employers in the Fourth Circuit because whether an employer may be liable for sexual harassment depends in part on whether the alleged harasser was a supervisor. As the Fourth Circuit again made plain, many things go into that decision – not just the whether or not that person can dictate economic consequences for a Plaintiff.

Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
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