Strict Liability of Employer for Supervisor’s Sexual Harassment of Employee

Under California Government Code §12940(j)(1), an employer is “strictly liable” for acts of sexual harassment committed by an agent or supervisor. “Strict Liability” means that the employer’s liability arises regardless of the employer’s own lack of knowledge or the employer’s attempts to remedy the situation, such as by publishing a policy against sexual harassment.

Since an employer is strictly liable for a supervisor’s sexual harassment, then the legal question usually turns to what is the legal definition of “Supervisor”.

Under California employment law, a “supervisor” is “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” See Gov’t. Code §12926(r).

The definition of a “supervisor” in the California Employment law, (“FEHA”), was actually lifted virtually verbatim from the definition used in the National Labor Relations Act. Moreover, in the 1979 case of Butler Johnson Corp. v. NLRB, the 9th Circuit court held, “the enumerated functions [in the definition of supervisor] are to be read in the disjunctive, and the existence of any of them, regardless of the frequency of their performance, is sufficient to confer supervisory status.”

Also, the Equal Employment Opportunity Commission Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors includes within the definition of “supervisor” one who is authorized to undertake tangible employment decisions affecting the employees or an individual who is authorized to draft any employee’s day-to-day work activities. This definition notes that an individual’s ability to commit harassment is enhanced by his authority to increase the employee’s workload or assign undesirable tasks.

Similarly, the California Practice Guide: Employment Litigation, discusses the definition of “supervisor” and notes that the effect of including the power to direct an employee’s work within the definition of supervisor “arguably means that a foreperson or lead worker, who otherwise might not be considered part of management, may be regarded as a ‘supervisor’ for whose misconduct the employer is strictly liable.” California Practice Guide: Employment Litigation (2007) Chapter 10, 10:319.

If you or someone you know have been sexually harassed by a supervisor at work, call the Orange County Sexual Harassment Lawyers at 949.375.4734. The employment lawyers at Nassiri Law Group will answer your questions and inform you of your rights, so give us a call today.

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