What Is Vicarious Employer Liability for Unlawful Harassment?

Legal Responsibility for Supervisors

Vicarious liability for unlawful harassment is a legal precedent that emerged as a result of various cases.

The Equal Employment Opportunity Commission (EEOC) issued guidelines that explain what this means. It cites the Supreme Court’s ruling in Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998). The Supreme Court based its decision on two main factors:

  • An employer is responsible for the acts of its supervisors.
  • Employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment.

Affirmative defense that employers have against vicarious liability allegations include showing that:

  • The employer exercised reasonable care to prevent and correct promptly any harassing behavior
  • The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm

The vicarious liability rule applies to harassment by supervisors based on race, color, sex (whether or not of a sexual nature), religion, national origin, protected activity, age or disability.

Who Is Considered a Supervisor?

Employees are supervisors if they have the authority to:

  • Undertake or recommend tangible employment decisions affecting the employee
  • Direct the employee’s daily work activities

Examples of tangible employment decisions could include (but are not limited to) promoting, demoting, hiring, firing, reassigning employees, and making compensation decisions or changes in benefits. Examples of supervisor authority over daily work activities would be increasing or decreasing the workload.

It is also vital for employers to make it known they will not tolerate adverse employee treatment for reporting harassment or providing information related to harassment complaints. Employers are responsible for ensuring retaliation does not occur.

Stephen Hans & Associates can assist you in complying with employment guidelines. We can also represent you in employment litigation to resolve disputed issues.

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