Surveying the Damage

Susan Grover & Kimberley Piro, Consider the Source: When the Harasser is the Boss, 79 Fordham L. Rev. 499 (2010).

In Consider the Source: When the Harasser is the Boss, Professor Susan Grover and Kimberley Piro raise a crucial point that should inform the always-evolving jurisprudence of sexual harassment. They argue that the identity of a sexual harasser as a supervisor or a coworker should be, but is currently not, a central consideration in the determination of whether actionable sexual harassment occurred. The article recounts the Supreme Court’s requirement that actionable harassment needs to be, among other things, “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” Despite this requirement, the article observes, most sexual harassment jurisprudence fails to factor in the distinction between supervisory and other types of harassment, like coworker harassment, when ascertaining whether a victim’s abuse is grave enough to warrant being deemed actionable harassment.

Courts adjudicating sexual harassment cases are required to factor in the totality of the circumstances surrounding the interactions at issue, focusing on the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”  Lower courts nationwide, however, have repeatedly refused to find actionable harassment where the abuse was quite severe or quite pervasive. The article notes insightfully that “[t]he crucial question of the harasser’s supervisory status has been one casualty of the courts’ disinclination to apply a true totality of the circumstances test.” (P. 507.)

To be sure, the delineation between supervisors as harassers and coworkers as harassers is clear and marked in the context of agency liability determinations. Supervisory harassment engenders automatic employer liability, absent the availability or applicability of an affirmative defense, whereas coworker harassment only does so where there is employer negligence in identifying and correcting the problem. However, the article incisively points out, the initial determination that the complained-of abuse qualifies as actionable harassment should take its source into account, but fails to. Most useful is a survey the authors provide of cases in which supervisory harassment that should, by all accounts, be deemed severe or pervasive, is not. While the facts in these cases are most egregious, the result of their being deemed nonmeritorious is apparently commonplace. Moreover, the courts’ indifference to the identity of the perpetrator of the harassment is evident as they do things like relying upon precedent that deals with coworker harassment cases when adjudicating the issue of severity or pervasiveness in supervisory harassment cases.

The point raised here is powerful and wholly logical—and yet it has been overlooked by judges over time and across jurisdictions. The same taunting and abuse that may fall short of demonstrably and sufficiently altering a plaintiff’s terms and conditions of employment almost invariably intones an additional message of threatening hostility when it comes from a supervisor. Even more compelling, but overlooked by courts, is the critical difference in severity between being physically assaulted by a coworker and being physically attacked by a supervisor.

Structuring their argument around what they term the three primary sources of exacerbation of supervisory, as opposed to coworker harassment – power differential, authority/fiduciary factors, and locus in the hierarchy – Grover and Piro submit that ultimately, the ability of a supervisor to assess, evaluate, reward, and discipline a subordinate invariably tinges any abuse that he inflicts with a level of perniciousness not found in coworker abuse. Considering a supervisor’s unique and demonstrated ability to have an impact upon both a subordinate’s reputation and professional self image, coupled with the subordinate’s need to have regular and positive contact with his or her supervisor, conspire to further render a harasser’s identity crucial in discerning the severity and the pervasiveness of abuse. The authors further posit that because a supervisor sets the tone in a given workplace, abuse at his hands will likely be emulated by others and viewed as ratification of others’ mistreatment of his target. Again, the ubiquity of one’s supervisor renders his abuse more pernicious than it would otherwise be. As an assumed fiduciary and role model in the workplace, each of the supervisor’s words and actions is imbued with magnified significance and power.

Moreover, both research data and common sense bolster the assertion that victims experience harassment at the hands of a supervisor differently than they experience it at the hands of a coworker, with most supervisory harassment victims left feeling more debilitated and more reluctant to confront the perpetrator and protest the treatment. The authors conclude that charged with evaluating the totality of the circumstances in ascertaining the presence of actionable harassment, the only way truly to assess a victim’s total experience is to factor in the “special power that supervisors possess to harm subordinates.” (P. 513.) In terms of pervasiveness, a supervisor’s influence and control over the physical workplace and over an employee’s terms and conditions of employment render his abuse nothing short of pervasive to his employee target, who cannot escape or ignore the reach of his words and actions, in both a literal and a figurative sense.

Thus, the article submits, harasser identification should be given a central role, if not primacy, in both the analysis as to whether actionable harassment occurred and that as to whether liability may be properly imputed to the defendant employer. It is scholarship like this article that makes the sharp and nuanced points needed to refine and advance jurisprudence in the always-evolving area of employment discrimination jurisprudence. All too often, poor results are reached in cases because blanket assumptions about the content of relevant frameworks or analyses rest unchallenged or unexamined. Provocative exhortations like those contained in this article are needed to impel judges to be more thoughtful and to come to more just determinations.