Supervisors & Vicarious Liability for Sexual Harassment

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  • 0:03 Vicarious Liability Defined
  • 1:12 Supervisor Defined
  • 1:50 Tangible Employment…
  • 3:03 Liability If No…
  • 4:37 Liablity If Tangible…
  • 5:34 Lesson Summary
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Lesson Transcript
Instructor: Shawn Grimsley

Shawn has a masters of public administration, JD, and a BA in political science.

Supervisors are agents of their employers, and employers may be held legally responsible for the actions of their agents. In this lesson, you'll learn about an employer's vicarious liability for supervisor sexual harassment.

Vicarious Liability Defined

Manuel works as a human resources manager for a large manufacturing firm and he has just finished his investigation of a claim of sexual harassment submitted by Ben against Abby, Ben's direct supervisor. Ben recently lost out on a promotion based upon Abby's recommendation. Ben claims that Abby undermined his promotion to a different department because he refused to cave into her sexual advances. Manuel's investigation has concluded that Ben's claim of sexual harassment is well supported.

Manuel's big concern is whether the company will be held vicariously liable for the actions of Abby. Vicarious liability is a legal doctrine that holds one person legally liable for the harm caused by the acts of another party, based upon a special legal relationship between the two. One of those special legal relationships is the agency relationship. Basically, this means that the company has a relationship with Abby because Abby is an employee. Therefore, the company can be blamed for Abby's wrongdoing.

Supervisor Defined

Manuel knows that sexual harassment laws generally will impose vicarious liability on employers for supervisor sexual harassment. But Manuel needs to determine whether Abby fits the definition of supervisor for purposes of sexual harassment law. According to the US Equal Employment Opportunity Commission, an employee is considered a supervisor under two situations:

  • The supervisor has the power to affect the duties or employment status of the employee
  • The supervisor has the power to affect the employee's daily work activities

Tangible Employment Action Defined

A tangible employment action is an action imposed upon an employee that changes the employee's employment status in some significant way. Examples of tangible employment action include firing, promotions, demotions, transfers, and compensation decisions.

It's important to note that the tangible employment action can be negative or positive for the employee. It would be patently unjust to let sexual harassment go unpunished because the victim capitulated to the harassment in order to get a job benefit such as a promotion, a raise, or a job transfer.

Manuel sighs and realizes that Abby fits both of these criteria. She not only had the authority to manage Ben's daily activities but also had the ability to recommend that Ben not receive the promotion, which is a tangible employment decision. This means that Abby has been found guilty of wrongdoing and because she is both the company's employee and Ben's supervisor, Manuel worries that the company can be found vicariously liable for Abby's actions. Manuel does some more research to see if he can help his company avoid vicarious liability.

Liability if No Tangible Employment Action

Manuel discovers through his research that the law treats supervisor liability different depending upon whether an employee suffered a tangible employment action. According to the EEOC, if the victim of harassment has not suffered a tangible employment action, an employer can avoid vicarious liability if it can prove an affirmative defense. An affirmative defense means that even if Ben can prove sexual harassment, the company can avoid vicarious liability. According to the EEOC, an employer must prove two things to take advantage of the affirmative defense:

  • The employer took measures to prevent harassment and quickly corrected any harassment that was reported
  • The employee did not utilize any preventative or corrective opportunities provided by the employer to prevent harm

Manuel is confident that the company's sexual harassment policy, including its reporting and investigation procedures, is exemplary. He also knows the policies require quick and effective action to remedy harassment. He feels confident that the company has exercised reasonable care. However, he also knows that Ben made his complaint immediately after he lost the promotion, which was decided the same day that Abby demanded a sexual favor in exchange for the promotion. Manuel doesn't think it's likely that the company can meet this requirement.

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