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Who Is Liable When an Employee is Harassed at Work?

Who Is Liable When an Employee is Harassed at Work?

By Malatesta Law on August 30, 2017

When an employee is unlawfully harassed at work, the harasser is personally liable for their unlawful conduct and the harasser’s employer may also be liable for the harasser’s conduct.

Individual Harasser Liability

Labor Code Section 12940(j)(1) explicitly makes an individual who harasses an employee personally liable for their conduct. Labor Code Section 12940(j)(1) states: “It is an unlawful employment…for an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee…

Because an individual who harasses another employee is personally liable for their unlawful conduct, the individual who was subjected to the harassing conduct can recover monetary damages from that individual.

Employer Liability for Harasser’s Conduct

Employer is Strictly Liable for a Supervisor’s Harassing Conduct

Under California law, an employer is strictly liable for a harasser’s conduct when the harasser is a supervisor. This means that if it is determined that a supervisor unlawfully harassed an employee, the employee can recover damages from their employer for the supervisor’s harassment.

Who is a Supervisor?

California law defines a “supervisor” as anyone having authority from the employer to “hire, transfer, suspend, lay off, 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.”

An Employer May Be Liable for a Non-Supervisor’s Harassing Conduct

When the harasser is not a supervisor, California law imposes a negligence standard for employer liability for unlawful harassment. This means that the employer will only be liable for the harasser’s unlawful conduct if the employer is aware of the harassment and fails to take prompt action to stop the harassment. Examples:

  • An employee’s co-worker makes highly offensive comments about the employee’s sexuality, mocks him for “liking men,” and calls him a “pansy.” The employee’s supervisor hears the co-worker’s comments and does not do anything to stop the harassment.
  • An employee’s co-worker repeatedly calls her a “dumb Mexican” and tells her she should “go back to Mexico.” The employee does not report her co-worker’s comments to her supervisor or anyone else in the company. Because the employer was not aware of the harassment, the employer is not liable for the harassment.
  • An employee’s colleague ridicules him for being Muslim and calls him a “terrorist” and a “towel-head.” The employee reports his colleagues’ harassment to his supervisor. The employee’s supervisor tells the employee that he “does not want to hear it” and to “just ignore it.” The employee’s colleague thereafter continues to harass the employee. Because the employee reported the harassment to his supervisor and his supervisor took no action to stop the harassment, the employee’s employer is liable for the harassing conduct.

Posted in: Harassment