The Employer's Legal Resource: 10th Circuit Ruling a Good Win for Employers, but ...

09.03.13

On August 13, the U.S. Court of Appeals for the 10th Circuit (which has jurisdiction over Oklahoma employers) issued a big win for employers in a sexual harassment case. In McCafferty v. Preiss Enterprises, Inc., the court held that the owner of a McDonald's franchise could not be held liable for the sexual harassment of a teenage employee by an older "shift leader." According to the 15-year-old employee victim, her 21-year-old shift leader gave her drugs and alcohol and engaged repeatedly in sex with her away from work.

Following the U.S. Supreme Court's recent harassment liability decision in Vance v. Ball State University, the 10th Circuit disagreed with McCafferty's assertion that the shift leader possessed sufficient authority and control over her to constitute a "supervisor" for purposes of holding the employer liable for his actions under Title VII. The shift leader's authority was limited to asking McCafferty and other employees "to cover an extra shift, stay beyond a scheduled shift, or [go] home early in limited circumstances..." Since the shift leader lacked authority to hire, fire, promote, demote, or transfer employees, the 10th Circuit decided that the sexually harassing actions of the shift leader could not be pinned on the employer, where the employer had no knowledge of the harassing behavior.

While McCafferty is definitely a good win for employers-since it significantly narrows the scope of risk employers face for supervisory sexual harassment-prudent employers would do well to act upon some important lessons here.

First, the employer still had to finance a costly defense to secure the victory. That alone supplies ample business justification to continue investing in adequate harassment prevention training for leaders and non-leaders alike. It is critical to put yourself in a position to show you have done all you reasonably can to prevent and correct promptly any alleged sexually harassing misconduct. Great prevention practices always make for a much greater defense.

Second, consider strategic opportunities to capitalize on the Vance and McCafferty decisions by limiting the scope of authority that certain leaders possess in order to narrow the scope of your risk for vicarious supervisory liability. And be sure to note the limitations in the updated job descriptions, which you will use as Exhibit "A" in establishing the leader is not a "supervisor" for Title VII purposes. For those leaders that already lack authority to hire, fire, promote, demote, or transfer, but who have power to direct others to some extent, make sure the job descriptions for those positions clearly reflects the lack of such authority.

By Christopher S. Thrutchley, cthrutchley@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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