Employer Strict Liability

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An employer always will be held liable for unlawful workplace harassment by a supervisor that results in a tangible employment action. It is therefore important to determine who is considered to be a “supervisor.”

  1. A supervisor is one who has authority to undertake or recommend tangible employment actions affecting the employee. As long as a person’s recommendation is given substantial weight, the person does not have to be the final decision maker; or
  2. A supervisor is one who has authority to direct the employee’s daily work activities. Directing an employee’s daily work activities includes the authority to increase the employee’s workload or assign undesirable tasks, and not simply relaying other officials’ instructions regarding work assignments. However, direction of only a limited number of assignments, such as someone who coordinates a work project of limited scope, is not a “supervisor.”

Sometimes an employer can be held liable for the actions of a supervisor who does not have actual authority over the employee, if the employee reasonably believes that the harasser has such power. If the harasser has no direct authority, and there is no reasonable belief that such authority exists, then the employer’s liability for harassment will be the same as for harassment by a co-worker.