Whether an employer can be held liable for sexual harassment depends on several factors, including the harasser’s status (i.e., supervisor, coworker, client, vendor). Depending on the circumstances, an employer may be held liable for acts of sexual harassment committed by its supervisors, nonsupervisory employees, and nonemployees.
Liability for Supervisors
The U.S. Supreme Court has established a standard for determining when an employer is subject to vicarious liability for the actions of its supervisors (Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998); Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998)). Under the Court’s standard, an employer is always liable for a supervisor’s harassment if the harassment culminates in a tangible employment action (e.g., firing, failure to promote). If no tangible employment action results, the employer might be able to avoid liability or limit damages by establishing an affirmative defense (commonly referred to as the Faragher-Ellerth defense), which is composed of two necessary elements:
- That the employer exercised reasonable care to prevent and correct promptly any harassing behavior; and
- That the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.
Who Is a Supervisor?
The U. S. Supreme Court has ruled that for purposes of harassment liability, an employee is a supervisor only if the employee has the authority to take tangible employment actions against the victim (Vance v. Ball State Univ., 133 S. Ct. 2434 (2013)). In this case, Maetta Vance, a catering assistant at Ball State University, claimed she was harassed based on race by a worker she viewed as a supervisor. Vance claimed that the alleged harasser had the authority to direct her daily activities, however, there was no evidence of any authority to fire, discipline, or take other tangible job actions. The 7th Circuit Court of Appeals ruled that even if the worker directed Vance’s day-to-day activities, those responsibilities were not enough to make her a supervisor for purposes of a harassment claim under Title VII. The Supreme Court affirmed the 7th Circuit’s ruling, resolving a split in the circuits on this issue. However, this ruling does not mean the alleged harassment did not occur, or that the employee should not face appropriate discipline if a thorough investigation substantiates harassing behavior.
Practical tip: Employers need to review supervisors’ duties to determine which ones have sufficient authority to take tangible employment actions. Training for supervisors needs to include how to prevent workplace harassment and the steps to take when an employee complains of harassment.
Tangible employment actions: Employment decisions that significantly change an employee’s status are considered tangible employment actions. Such actions include the following:
- Hiring
- Firing
- Promoting
- Demoting
- Reassigning
- Evaluating performance
- Disciplining
- Recommending for salary increases, bonuses, or special projects
An individual whose job responsibilities include the authority to recommend tangible job decisions affecting an employee may qualify as his or her supervisor, even if the individual does not have the final say. As long as the individual’s recommendation is given substantial weight by the final decision makers, that individual likely meets the definition of a supervisor.
Harassers Outside Supervisory Chain of Command
In certain circumstances, an employer may be liable for harassment by a supervisor who does not have actual authority over the employee. This can occur when an employee reasonably believes that the harasser had such power. For example, the employee might have such a belief because the chains of command are unclear. The employee might also reasonably believe that a harasser was in a position to significantly influence employment decisions affecting him or her, even if the harasser is outside the employee’s chain of command.
If the harasser had no actual supervisory power over the employee, and the employee did not reasonably believe that the harasser had such authority, the employer is liable only if it knew of the harassment and failed to stop it.
Liability for Nonsupervisory Employees
Coworkers. An employer is liable for the harassing conduct of an employee’s coworker if the employer knew or should have known of the harassment and failed to take immediate and appropriate action to end the harassment. An employer may be viewed as having known of harassing conduct if a supervisor or any other person acting as the employer’s agent is aware of the harassment. This is one of the reasons training supervisors and others in authority is critically important. Knowing how to handle and promptly report harassment complaints through an established procedure is key to providing prompt remedial action; and to protecting against discrimination claims.
Third party harassers. Employers may also be liable for harassment by a third party, such as a customer or a vendor, if the employer knew or should have known about the harassment and failed to take immediate and appropriate action to correct the situation.
Final thoughts
Workplace harassment responsibility does not rest on a title alone. It lives in how organizations respond, investigate, and act. At the end of the day, employees are not focused on legal definitions; they are focused on how they are treated at work and how their workplace and supervisors make them feel. When concerns are raised, what matters most is how leaders respond. Listening, taking action, and following through sends a powerful message about what your organization stands for. When organizations commit to clear expectations, timely action, and fair processes, they not only reduce risk, they also build trust, strengthen culture, and create workplaces where employees feel safe, respected, and heard.
If you have any questions regarding this topic or other HR questions or concerns, please contact us at HRServices@501c.com or (800) 358-2163.
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The information contained in this article is not a substitute for legal advice or counsel and has been pulled from multiple sources.
(Images by Prostock-Studio and The Yuri Arcurs Collection)
