Employer liability for harassment, including sexual harassment, of employees depends on whether the harassment is committed by a supervisor or a co-worker.
The United States Supreme Court ruled today that employers are liable for harassment under Title VII where a supervisor’s action results in a tangible employment action (i.e., “a significant change in employment status, such as hiring, firing, failing to promote, etc.) Vance v. Ball State University – filed June 24, 2013, 11-556_11o2. The court held as follows:
“Under Title VII, an employer’s liability for workplace harassment maydepend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligentin controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action (i.e., “a significant change in employment status, such as hiring, firing, failing topromote, reassignment with significantly different responsibilities, ora decision causing a significant change in benefits,” the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that(1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that theemployer provided.”
In California, under the Fair Employment and Housing Act, companies’ are strictly liable for harassment, including sexual harassment, committed by supervisors. “”Supervisor” means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”