When is an employer liable for sexual harassment by a supervisor?
Recent court case narrows the instances when an employer can be held responsible for unlawful conduct by a supervisorial employee.
Courts have ruled that when a supervisor engages in unlawful sexual harassment of his or her subordinate, or harassment based on another protected characteristic, his employer is automatically, or strictly, liable under the California Fair Employment & Housing Act (FEHA). That is true whether the employer knew of the harassment or not.
The employer is liable because by giving the harasser authority over the victim of the harassment, the employer assumed responsibility for the harasser’s abuse of that delegated authority.
By contrast, where the harasser is a non-supervisory co-worker of the victim, FEHA makes an employer legally responsible for the harassment only if the employer (1) knew or should have known of the harassment and (2) failed to take immediate and appropriate action to punish and deter the harassment. The employer, then, is liable only if it responded negligently to the harassment.
In Doe v. Wells Fargo Bank, the court of appeal recently held an employer is not automatically liable for sexual harassment committed by a supervisor who does not supervise the alleged victim of the harassment.
Background
Normally the underlying facts of the case would be summarized here. But the disturbing, alleged misbehavior is not relevant to why the court ruled as it did on the core question. Assuming without deciding that the alleged harasser was a supervisor of other, lower-level Wells Fargo employees under FEHA’s broad definition of “supervisor,” the court concluded Wells Fargo wasnot automatically liable for his misconduct because the alleged harasser indisputably “held no supervisory authority over plaintiff and he did not abuse his authority as an alleged supervisor in his actions toward plaintiff.”
Here’s why.
Click here to read the full article written by SCMV Shareholder Dan Eaton and published in The San Diego Union-Tribune.