National Litigation Hotline

Yasharay Mack started working for Otis Elevator Company in 1999 as an elevator mechanic's helper. In her position, she assisted six elevator mechanics. From the time of her hire, Mack claimed, mechanic James Connolly made lascivious comments regarding her appearance, regularly changed out of his uniform in front of her, and on at least one occasion, tried to force her to sit on his lap and kiss him. He also commented that 'spics' and 'niggers' were not meant to do elevator work. Mack repeatedly complained to Connolly's supervisor about him, but the company took no action. Mack ultimately filed suit in district court, alleging a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. Under Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), an employer is vicariously liable for the harassment of an employee only when 'a 'supervisor with immediate (or successively higher) authority over the employee' has engaged in the complained of conduct.' ' The company argued that it should not be held liable for Connolly's harassment of Mack because Connolly was her co-worker, not her supervisor. The company noted that Connolly could not have hired or fired Mack, could not reassign her to different duties or significantly change her benefits, and had no power to promote her ' in other words, that he could not cause Mack to suffer an adverse employment action. The district court granted summary judgment to Otis Elevator.

On appeal, the Second Circuit reversed the decision of the district court. The Court held that although the issue of whether Connolly could take an adverse employment action over Mack is relevant to the availability of an affirmative defense under Ellerth and Faragher, 'it does not affect the preliminary assessment of whether the employer may be vicariously liable.' That assessment, the Court held, 'depends on whether the power ' economic or otherwise, of the harassing employee over the subordinate victim given by the employer to the harasser ' enabled the harasser, or materially augmented his or her ability' to create a hostile work environment. The Second Circuit thus concluded that the authority over Mack given to Connolly by Otis Elevator led to the conclusion that the company should be held vicariously liable for Connolly's harassment of Mack.