Title VII “Supervisor” Must Affect Terms and Conditions of Employment

Under Title VII, an employer can be held liable for a hostile work environment created by a supervisor.  That situation differs from a hostile work environment created by a co-worker, where the company is liable only if the complainant can show that the company was negligent in discovering or remedying the situation.  Recently, the 7th U.S. Circuit Court of Appeals reviewed the definition of “supervisor” under Title VII, and determined that a supervisor is not a person who simply possesses authority to oversee an individual’s job performance.  In order to be classified as a “supervisor” for purposes of liability under Title VII, that person must have the power to “directly affect the terms and conditions of the plaintiff’s employment,” including the power to hire, fire, promote, or demote.  Andonissamy v. Hewlett-Packard Company, Nos. 07-2387 and 07-2390 (7th Circ. November 7, 2008).

Sanjay Andonissamy, a French citizen of Indian ethnicity, worked as a systems engineer for Hewlett-Packard.  In that capacity, and based upon H-P’s sponsorship of his H-1B visa, he was assigned to the Qwest Cyber Center in Chicago from April 2001 through June 2003.  Andonissamy alleged that during his tenure at Qwest, his supervisor (Smith) made racist comments, including remarks that U.S. citizens were unable to find jobs because “people like Andonissamy” had taken them.  Andonissamy complained about Smith’s remarks and treatment.  H-P and Qwest asserted that while Andonissamy’s technical skills were strong, his relationships with co-workers and customers were not strong, and that the company had received complaints that Andonissamy treated people rudely.  After a complaint from a customer in 2002, Smith put Andonissamy on a performance improvement plan.  Subsequently, Andonissamy’s performance deteriorated, with missed deadlines increasing, and additional complaints about Andonissamy from both Qwest and customers.

In March 2003, H-P’s human resource department undertook an investigation, and determined that a performance warning should be issued to Andonissamy.  After the issuance of that warning on May 5, Andonissamy continued to miss deadlines and refused to train a back-up person to assist him.  In June 2003, Qwest refused to allow Andonissamy’s return to the Cyber Center, and Andonissamy’s employment with HP was terminated.  In 2004, Andonissamy filed a federal court complaint against both H-P and Qwest, which included national origin discrimination and violation of the FMLA, based upon denial of a requested leave for depression.

The lower court dismissed all of Andonissamy’s claims on summary judgment, and that decision was upheld on appeal.  After analyzing each of Andonissamy’s claims, the Seventh Circuit found that none were sufficiently supported.  The most interesting part of the analysis is the court’s characterization of the national origin/hostile environment claim under Title VII.

First the court set forth the elements necessary to survive summary judgment on a claim of hostile environment, stating that a plaintiff must establish that: (1) he was subjected to unwanted harassment; (2) the harassment was based upon national origin; (3) the harassment was severe and pervasive enough to alter the conditions of his employment; and (4) there is a basis for employer liability.  The court never reached the question of whether Andonissamy’s workplace was a hostile environment.  Instead, it held that Andonissamy had not established a basis for employer liability, because he was unable to establish that Smith possessed sufficient authority to be classified as a “supervisor” under Title VII.  Smith did not hire or fire Andonissamy, and while Smith was able to recommended disciplinary action, H-P’s human resource department had to conduct an investigation and issue its own recommendation prior to discipline being imposed. 

In this case, the court specifically stated that “directing work activities and recommending disciplinary action are not in and of themselves sufficient to make someone a supervisor under Title VII.”  However, employers should not take this as an open invitation to overlook situations in which nominal managers act unprofessionally toward subordinates.  The result of this case turned on the specific circumstances of the relationship between Smith and Andonissamy, and the fact that Smith did not have direct authority to hire, fire, or discipline Andonissamy.  In addition, H-P had carefully documented Andonissamy’s original complaints about Smith, and was able to show that those complaints did not include allegation of national origin discrimination.  Therefore, the company was not on notice of the nature of Andonissamy’s claims against Smith and could not be deemed to have been liable for discrimination.