3.4 Employer liability for harassment

Workplace harassment is a serious issue that can create a hostile work environment and lead to legal liability for employers. This topic explores the various forms of harassment, employer responsibilities, and the legal framework for addressing and preventing such behavior.

Employers have a duty to maintain a harassment-free workplace and can be held liable for employee misconduct. Understanding the types of harassment, prevention strategies, and legal obligations is crucial for both employers and employees to foster a safe and respectful work environment.

Types of workplace harassment

• Workplace harassment encompasses various forms of unwelcome conduct that create a hostile, offensive, or intimidating work environment
• Harassment can be based on protected characteristics such as race, color, religion, sex, national origin, age, disability, or genetic information
• Common types of workplace harassment include sexual harassment, racial harassment, religious harassment, and disability-based harassment
• Harassment can involve verbal conduct (slurs, epithets, jokes), physical conduct (unwanted touching, assault), or visual displays (offensive posters, cartoons)
• Harassment becomes unlawful when enduring the offensive conduct becomes a condition of continued employment or the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive

Employer's duty to prevent harassment

• Employers have a legal obligation to maintain a workplace free from harassment and discrimination
• This duty requires employers to take proactive steps to prevent harassment from occurring in the first place
• Employers must establish and communicate clear anti-harassment policies that define prohibited conduct and outline reporting procedures
• Employers should provide regular training to employees and supervisors on harassment prevention and their rights and responsibilities under the law
• Employers must promptly investigate any complaints of harassment and take appropriate corrective action to address substantiated claims
• Failure to fulfill this duty can result in legal liability for the employer under federal and state anti-discrimination laws

Vicarious liability for harassment

• Vicarious liability holds employers responsible for the harassing conduct of their employees, even if the employer was unaware of the harassment
• The principle behind vicarious liability is that employers are in the best position to prevent and correct harassing behavior in the workplace

Harassment by supervisors

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• Employers are strictly liable for harassment by supervisors that results in a tangible employment action (firing, demotion, pay cut)
• This means the employer is automatically liable, regardless of whether they knew about the harassment or took steps to prevent it
• For supervisor harassment that does not result in a tangible employment action, employers may assert an affirmative defense to liability (discussed below)

Harassment by coworkers

• Employers are liable for harassment by coworkers if they knew or should have known about the harassment and failed to take prompt and appropriate corrective action
• The "knew or should have known" standard requires employers to be reasonably vigilant in monitoring the workplace for signs of harassment
• Employers can acquire knowledge of coworker harassment through employee complaints, direct observation, or other means

Harassment by non-employees

• Employers may be liable for harassment by non-employees (customers, clients, vendors) if they knew or should have known about the harassment and failed to take prompt and appropriate corrective action
• The extent of the employer's control and legal responsibility over the harasser is a key factor in determining liability in these situations

Affirmative defense to liability

• In cases of supervisor harassment that do not result in a tangible employment action, employers may avoid liability by establishing an affirmative defense
• The affirmative defense has two necessary elements:

Reasonable care to prevent harassment

• The employer must show that it exercised reasonable care to prevent and promptly correct any harassing behavior
• This typically involves having an anti-harassment policy, providing training, and establishing an effective complaint process

Prompt corrective action

• The employer must demonstrate that the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer
• If the employee reported the harassment, the employer must show that it responded with appropriate corrective action, such as investigating the complaint and disciplining the harasser

Employee's duty to report harassment

• Employees who experience or witness workplace harassment should promptly report the conduct to their employer through the designated complaint channels
• Timely reporting allows the employer to investigate and address the harassment before it becomes severe or pervasive
• Failing to report harassment in a timely manner can undermine an employee's legal claims and support the employer's affirmative defense
• However, an employee's failure to report does not necessarily absolve the employer of liability, particularly if the harassment was obvious or the employer had constructive knowledge

Retaliation against harassment complaints

• Employers are prohibited from retaliating against employees who report harassment, participate in a harassment investigation, or oppose unlawful harassment
• Retaliation can take many forms, such as termination, demotion, pay cuts, threats, increased scrutiny, or other adverse employment actions
• Employers must have clear anti-retaliation policies and ensure that employees who make harassment complaints are not subjected to adverse treatment
• Retaliation claims can be pursued independently of the underlying harassment claim, even if the harassment claim is ultimately unsuccessful

Investigating harassment allegations

• When an employer receives a harassment complaint or otherwise becomes aware of alleged harassment, it must promptly investigate the allegations
• Investigations should be conducted by impartial and trained personnel, such as human resources staff or outside investigators
• The investigation should include interviews with the complainant, alleged harasser, and relevant witnesses, as well as a review of any documentary evidence
• Employers should maintain confidentiality to the extent possible, but cannot guarantee complete confidentiality
• If the investigation substantiates the harassment allegations, the employer must take appropriate corrective action, such as disciplining or terminating the harasser

Remedies for harassment victims

• Employees who experience unlawful workplace harassment may be entitled to various legal remedies under federal and state anti-discrimination laws

Back pay and lost benefits

• Victims of harassment may recover back pay for any lost wages and benefits resulting from the harassment, such as if they were forced to quit or were denied a promotion

Compensatory damages

• Compensatory damages are available to compensate victims for emotional distress, humiliation, and other non-economic losses caused by the harassment
• Federal law caps compensatory damages based on the employer's size, while some state laws allow for uncapped damages

Punitive damages

• In cases of particularly egregious or malicious harassment, victims may be awarded punitive damages to punish the employer and deter future misconduct
• Punitive damages are subject to the same caps as compensatory damages under federal law, but some states allow for higher or uncapped punitive damages

Harassment prevention policies

• Effective harassment prevention starts with clear and comprehensive policies that communicate the employer's commitment to a harassment-free workplace

Anti-harassment training

• Employers should provide regular anti-harassment training to all employees, including supervisors and managers
• Training should cover the types of conduct that constitute harassment, the employer's complaint process, and the consequences of engaging in harassment
• Some states, such as California and New York, have specific requirements for the content and frequency of harassment prevention training

Complaint procedures

• Harassment policies should include a clear and accessible complaint process for employees to report harassment
• The process should allow for multiple avenues of reporting, such as to a supervisor, human resources, or a dedicated hotline
• Employers should designate specific individuals to receive and investigate harassment complaints and ensure that they are properly trained
• The complaint process should emphasize confidentiality, promptness, and protection against retaliation

Liability under state vs federal law

• Workplace harassment is prohibited under both federal and state anti-discrimination laws
• Federal laws, such as Title VII of the Civil Rights Act of 1964, apply to employers with 15 or more employees and prohibit harassment based on protected characteristics
• Many states have their own anti-discrimination laws that may apply to smaller employers and may provide greater protections or remedies than federal law
• Some states, such as California and New York, have specific laws addressing workplace harassment that impose additional requirements on employers, such as mandatory training or policy provisions
• Employers must comply with both federal and applicable state laws regarding harassment prevention and liability
• In cases where state and federal law conflict, the law that provides the greatest protection to employees will generally apply