In Bentley v. AutoZoners, LLC et al, No. 18-2441-cv, 2019 WL 3884248 (2d Cir. (Conn.) Aug. 19, 2019), the Second Circuit, inter alia, affirmed the dismissal of plaintiff’s sex-based hostile work environment claim. This decision provides a good overview of the law relating to when the conduct of an employee, amounting to a hostile work environment, may be imputed to the employer.
Here, the plaintiff asserted that, while an employee of Auto Zone, she was subjected to a “hostile work environment” in the form of allegedly sexist comments made by another employee named Valentin.
The court summarizes the relevant law, based on a relatively recent Supreme Court decision called Vance v. Ball State University, 570 U.S. 421 (2013):
In Vance, the Supreme Court resolved a circuit split. “Some courts [had] held that an employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the victim”; other courts had “substantially followed the more open-ended approach advocated by the EEOC’s Enforcement Guidance, which tie[d] supervisor status to the ability to exercise significant direction over another’s daily work.” Id. at 430–31, 133 S.Ct. 2434. The Supreme Court rejected the latter position, holding that “[t]he ability to direct another employee’s tasks is simply not sufficient” to make one a supervisor. Id. at 439, 133 S.Ct. 2434. Rather, an employee is a supervisor only “when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’ ” Id. at 431, 133 S.Ct. 2434 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). The hallmark of the tangible employment action thus used to identify a supervisor is its potential “to inflict direct economic injury.” Id. at 440, 133 S.Ct. 2434. As the Supreme Court explained in Vance, “[o]nly a supervisor has the power to cause ‘direct economic harm’ by taking a tangible employment action,” and it is “because a supervisor has that authority—and its potential use hangs as a threat over the victim—that vicarious liability … is justified.” Id.; see also Burlington Indus., Inc. v. Ellerth, 524 U.S. at 762, 118 S.Ct. 2257 (observing that “supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control”).
Therefore, the outcome here turned on whether Valentin was a “supervisor,” or not. Under the facts of this case, the court concludes that the record “would not permit a reasonable jury to find that Valentin had the sort of disciplinary authority that could cause Bentley economic injury, without which he could not be identified as a ‘supervisor’ for purposes of vicarious liability.”
In reaching this conclusion, the court noted that Valentin could not hire, fire, promote, or demote employees, or set their compensation or work hours.