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Sixth Circuit Stresses Power of Supervisor to Trigger Vicarious Liability

David Hylko claimed that his shift-manager John Hemphill sexually harassed him. Mr. Hemphill was responsible for training Mr. Hylko and assigned him to his job duties. Both men also reported to the area manager. The harassment consisted of Mr. Hemphill asking Mr. Hylko about his sex life regularly, grabbing Mr. Hylko’s buttocks on two occasions while complimenting him on his “nice firm ass,” and one incident of grabbing his penis. In addition, Mr. Hemphill was accused of placing a banana in his pants and poking another employee with it. 

Mr. Hylko complained about the harassment. Mr. Hemphill was then transferred to a different area of the plant. He was also given a verbal warning, suspended for a week, and made to take a leadership class. The harassment stopped. Nevertheless, Mr. Hylko sued. 

Summary judgment for the employer was granted by the trial court and affirmed by the Sixth Circuit Court of Appeals. Mr. Hylko could show that the harassment was based on sex and that it created a hostile work environment. However, Mr. Hylko could not establish that his employer was vicariously liable for Mr. Hemphill’s conduct. For an employer to be vicariously liable, the supervisor had to be “empowered by the employer to take tangible employment actions against the victim.” These tangible employment actions must affect a “significant” change in the victim’s employment status. Mr. Hemphill could not promote, demote, or fire Mr. Hylko. Without that authority, he could not significantly change Mr. Hylko’s employment and was thus not a supervisor within the meaning of Title VII. Because this employer took prompt and remedial action to remedy the harassment, there was also no liability under a co-worker theory.