An employer is strictly liable for the sexual harassment by supervisors and agents in the workplace under the California Fair Employment and Housing Act. In contrast, if the harasser is a co-worker, not a supervisor, then a victim must show the employer knew or should have known about the co-worker’s harassment and failed to take immediate corrective action. Thus, it is often a defense of employers to sexual harassment by supervisor claims that management did not know about the harassment and that the harasser was not a supervisor.
The liability of an employer can turn on the definition of “supervisor”. In California’s Fair Employment and Housing Act, a supervisor is defined as any individual having 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 cases of sexual harassment by supervisors, an issue often arises where someone with authority to direct other employees does not have authority to suspend, promote, or discharge another worker. It is often the case that a worker with limited management responsibilities may only have authority over another worker to direct their daily activities in the workplace.
To qualify as a supervisor under the definition in the Fair Employment and Housing Act, it is sufficient if the employee only has the authority to direct the daily work activities of another employee. Under the definition, such a supervisor need not have full accountability or responsibility for the directed employee’s performance and work product. While full accountability and responsibility is an indication of supervisory power, it is not a required element for a jury to determine that one person is the supervisor of another in the workplace.
