Does the identity of the harasser matter?
Employers have a duty to protect employees from discrimination and harassment in the workplace, and this obligation applies whether a harasser is a contractor, a customer, or another employee.
Liability for supervisor actions
But when the harasser is an employee, his or her relationship to the individual being harassed matters. Specifically, if the harasser is the victim’s supervisor, the employer is assumed to be liable for the conduct if it has a negative effect on the employee’s job or working conditions. This negative effect could include discipline, demotion, or termination, or even denying an employee advancement op- portunities.
Adverse actions could also be less formal, such as assigning the employee less desirable work. For instance, an employee’s supervisor repeatedly gives an employee the worst assignments because she refused his sexual advances. In such a situation, the company would be automatically liable for the supervisor’s harassment.
Is the supervisor title required?
Courts have ruled that employers can be automatically liable for another employee’s harassing behavior even if that individual isn’t the victim’s official supervisor. In a recent case before the Third Circuit Court of Appeals, a head custodian cut another employee’s hours after she refused to continue sleeping with him in exchange for more shifts.
The court ruled that the head custodian still had the ability to change the employees job/ working conditions. For the purposes of liability, the court ruled the head janitor could still be considered a supervisor even though he wasn’t identified as such in the employer’s chain of command.