Federal Court Examines Liability For Supervisor Harassment

Harassment of one employee by another employee (not an agent or supervisor) is unlawful only if the entity, or its agents or supervisors, knew or should have know of the harassment and failed to take immediate and appropriate corrective action. However, the employer is strictly liable for harassment perpetrated by its supervisors and agents. In many cases, whether the alleged harasser is a “supervisor” is a significant issue in the case.

Under the FEHA, a supervisor is an individual who has “the authority, in the interest of 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.” In some cases, if the person has sufficient general authority in the workplace to create the perception of supervisor status, that person can be considered a supervisor.

COUNSEL TO MANAGEMENT:

Train supervisors and managers on proper response to complaints and investigation policies and procedures. These individuals must take the required two-hour sexual harassment training every two years. Carefully document the training.

Have an employee handbook that prohibits harassment and provides a clear procedure for employees to complain about harassment. Investigate and take seriously all employee complaints of harassment, and carefully document the investigation and its results. If you determine that harassment has occurred, make sure your respond appropriately to the seriousness of the conduct, and document what you have done to address the issue.

The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Saqui & Raimondo at (831) 443-7100 in Salinas, or (916) 782-8555 in Sacramento for individual responses to questions or concerns regarding any given situation.