Employer and Supervisor Liability for Sexual Harassment

You May Have A Claim For Sexual Harassment Against Your Employer—And Your Supervisor—Under FEHA

If you were the victim of sexual harassment by your supervisor at your workplace, you may be able to sue more parties than you think for the compensation you deserve. Why is this important? You want to be certain that you in fact receive all of the compensation you are entitled to. The best way to do this is to sue all the potentially liable parties to increase the sources of compensation—and the chances that you would receive all that you are owed. This could mean that you should sue more than just your employer.

How Many Employees Are Required for an Employer to Be Liable for Sexual Harassment?

In many ways, the California Fair Employment and Housing Act (FEHA) gives employees far more protections against sexual harassment than Title VII of the Civil Rights Act of 1964. One way is the number of employers the laws cover. Under Title VII, the employer must employ 15 or more employees for an employee to have a claim for sexual harassment. Under FEHA, any employer who employs at least one employee—virtually all employers—faces potential liability for sexual harassment.

What Is Employer Liability for a Supervisor’s Sexual Harassment?

Under the FEHA, an employer is liable for a supervisor’s sexual harassment whether or not the employer knew about the harassment. This is known as strict liability. Title VII also gives employees similar protections.

Employers are not defenseless to a claim that they are strictly liable for a sexual harassment claim. They may raise the avoidable consequence defense. Here’s how it works:

• To be successful, the employer must show based on its anti-harassment policies and procedures and its past record of acting on complaints that the employee acted unreasonably in not making a complaint sooner.
• If raised successfully, the defense can reduce the compensation awarded to the victim.

Even if not liable under a strict liability theory, employers can also be liable for a supervisor’s illegal harassment if they knew or should have known about the harassment and failed to take immediate steps to correct the illegal actions.

When Is a Supervisor Liable for Sexual Harassment?

Unlike Title VII—which only holds the employer liable for a claim of sexual harassment by a supervisor—a supervisor can be personally liable for sexual harassment under the FEHA. A supervisor is defined broadly under the FEHA, and he must have the authority to do some of the following on behalf of the employer:

• Hire employees
• Transfer employees
• Suspend employees
• Lay off employees
• Promote employees
• Recall employees
• Discharge employees
• Assign employees
• Reward employees
• Discipline employees
• Direct or adjust an employee’s grievance

These actions must involve using independent judgment and not just making clerical decisions. A person does not need to be wholly responsible for a worker’s performance or work duties to be considered a supervisor. This can result in many more employees in limited supervisory positions facing personal liability if they sexually harass another employee.

Once a victim proves that the supervisor meets the definition of a supervisor under the FEHA, she can hold him individually liable. A supervisor can be liable for the following:

• If he sexually harassed the victim.
• If he aided and abetted the sexual harassment of the victim by becoming aware of the harassment and failing to take any actions to stop it.

While it is a good idea to sue a supervisor individually if possible, a sexual harassment victim must be practical regarding the ability to recover from this person. He may not have the financial resources to pay much of what he owes. However, suing both the employer and supervisor individually makes it more likely that there will be sufficient insurance or individual amounts to pay the settlement or jury award in full.

An experienced employment discrimination attorney can help you determine whether your manager fits within the definition of a supervisor under the FEHA. You may be surprised to learn that the person who is illegally harassing you is considered one under the FEHA. Start an online chat or call our firm today at 949-649-4723 to schedule a free, no-obligation consultation.

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