Donna M. Rhodes v. Illinois Department of Transportation

ROVNER, Circuit Judge,

concurring in part and concurring in the judgment.

Given the undisputed facts and the law of this circuit, I agree that IDOT is entitled to summary judgment on each of Rhodes’ claims, and I join Parts I, H.A., and II.C. of the majority’s opinion. I write separately to express my concern about this circuit’s method of identifying supervisors who may render the employer strictly liable for sexual harassment occurring in the workplace, see ante at 505-506.

Consistent with this Court’s opinions in Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir.2002), and Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1034 (7th Cir.1998), we reiterate today that an employee must have the authority to directly affect the terms and conditions of the plaintiffs employment in order to qualify as a supervisor and render the employer vicariously liable for the employee’s harassing conduct. Ante at 506. The authority to oversee the plaintiffs work is not deemed sufficient to meet that test. Id., citing Hall at 355. Thus, although Mara and Poladian managed Rhodes’ work assignments, investigated complaints and disputes, and recommended sanctions for violations of workplace rules, the court concludes that this authority is insufficient to make them supervisors.

Although this holding represents a faithful application of Hall and Parkins, other courts have criticized the supervisory standard articulated in Hall and Parkins as too narrow. See Mack v. Otis Elevator Co., 326 F.3d 116, 126-27 (2d Cir.), cert. denied, — U.S. —, 124 S.Ct. 562, 157 L.Ed.2d 428 (2003); Dinkins v. Charoen Pokphand USA, Inc., 133 F.Supp.2d 1254, 1266 (M.D.Ala.2001); Entrot v. BASF Corp., 359 N.J.Super. 162, 819 A.2d 447, 459 (2003). The Equal Employment Opportunity Commission as well has indicated that an individual may qualify as a supervisor not only when he has the power to hire, fire, promote, demote or reassign the plaintiff employee, but also when he “has authority to direct the employee’s daily work activities.” EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, No. 915.002, § III.A. (June 18, 1999); see also id. § III.A.2.

Insistence that the harasser have the power to take such formal employment actions as hiring, firing, or demotion before he will be treated as a supervisor strikes me as a particularly narrow view, and potentially a troubling one in a case like this. Mara and Poladian held the top two positions at Rhodes’ workplace. Although they did not have the power to take formal employment actions vis-a-vis Rhodes, they necessarily must have had substantial input into those decisions, as they would have been the people most familiar with her work — certainly more familiar with it than the off-site Department Administrative Services Manager. Indeed, Mara and Poladian were the ones responsible for Rhodes’ day-to-day assignments and work environment. Viewing the facts favorably to Rhodes, Mara and Poladian essentially ran the Arlington *510Heights Maintenance Yard on IDOT’s behalf. They were superior not just to her, but to everyone else at that worksite as well. Consequently, whatever formal employment authority they lacked, a factfin-der reasonably might conclude that the power IDOT had given them to manage the Yard on a day-to-day basis enabled or facilitated their ability to create a hostile work environment for Rhodes. See Mack, 326 F.3d at 126; see also Gawley v. Indiana Univ., 276 F.3d 301, 310-11 (7th Cir.2001).

Cases like this one suggest that we ought to re-examine the criteria we have articulated for identifying supervisors. The standard that this circuit has established has the allure of drawing a bright line between those who have the power to make formal employment decisions and those who do not. But it excludes from the category of supervisor those employees who, although lacking final authority to hire, fire, promote, demote, or transfer the plaintiff, nonetheless enjoy substantial authority over the plaintiffs day-to-day work life. To that extent, it is a standard that arguably does not comport with the realities of the workplace. And to the extent that employers with multiple work-sites vest the managers of such sites with substantial authority and discretion to run them but reserve formal employment authority to a few individuals at central headquarters, our standard may have the practical, if unintended, effect of insulating employers from liability for harassment perpetrated by their managers.