In Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, the U.S Supreme Court ruled that an employer has strict liability for sexual harassment by a supervisor(1). This strict liability applies whether the harassment is quid pro quo or hostile work environment.

However, if sexual harassment occurs when an employee substantially devaites from employment duties for personal purposes, the California Supreme Court ruled that an employer is not strictly liable(2).

Who is a “Supervisor” ?

Because employers can be strictly liable for the harassing acts of their supervisors, the question of who actually is a “supervisor” under federal and state law matters.

California provides a statutory definition of who is a “supervisor” under the FEHA which is broader than the federal definition under Title VII.

The definition of a “supervisor” under state law is as follows:

“Supervisor” means any individual having the authority, in the interest of the employer to hire, transfer, suspend, layoff, 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” (3).

The state law definition of supervisor includes not just those with the power to make decisions, but also those with the authority to make recommendations. It further includes those with the responsibility for directing employees.