In most cases, the employer will be held responsible for harassment that occurs on the premises or in connection with the employment relationship. The degree to whcih the employer will be held liable depends, in part, on the unlawful conduct’s source. Employers may be liable for sexual harassment commited by supervisors, co-workers, or third parties.
Employers are strictly liable for sexual harassment of a subordinate by its agents or supervisors. Strict liability means that the employer has absolute legal responsibility for any harm regardless of whether you knew or should have known of the conduct (1). The employer does not have to be found careless or negligent.
You are liabe for the harassment of employees, applicants or independent contractors commited by an employee who is not a supervisor/agent only if you knew (or should have known) about the conduct and fail to take immediate and appropriate correction action (2).
Employers are liable for a manager’s sexual harassment of an employee even if off-duty and away from work. And, managers who socialize with subordinate employees may see or learn things about off-duty conduct that place the manager, and the company, at risk. If a manager sees sexually harassing conduct of one employee by another, and does nothing to stop it, employees may argue that the manager and, by default, the company, sanctioned the conduct. Employees could also argue that having a manager present, even after work and off-site, turns a social event into a company-sponsored event.
Though most employers know of their duty to protect employees from harassment by other employees, employers must also protect employees from harassment by third parties, such as customers.
Effective January 1, 2019, employers can be liable for harassment by nonemployees on any basis protected under FEHA. Prior law limited this kind of liability for acts of nonemployees to sexual harassment. The change in the law expands an employer’s liabiliy in cases where the employer knew or should have known of the harassing conduct by a nonemployee and failed to take immediate and appropriate corrective action (3).
You may be responsible for the acts of nonemployes who harass employees, applicants or independent contractors in the workplace if you, your agents, or supervisors knew or should have known of the harassment and you fail to take immediate and appropriate corrective action (4). The obligation to protect against harassment committed by nonemployees is part of FEHA. When reviewing harassment cases that involve nonemployees, the DFEH, the EEOC and the courts consider the extent of your control of and legal responsibility for the conduct (5).
Example: Joyce Turman worked the night shift at a hallway house that transitioned felons from prison back into the workforce and society. Turman complained that she was frequently subjected to sexual gestures, sexual propositions and derogatory comments. The hallway house argues that the harassment by these former prisoners was inherently part of the job.
The court disagreed, and held that the employer has a duty to investigate and take corrective action, even when harassment may be inherently part of the job. Employers are not off the hook just because they have rude or inappropriate customers (6).
Example: After a trespasser was observed by other employees wandering around and making sexually harassing comments to other housekeepers, he sexually assaulted and battered a hotel housekeeper for two hours. Although hotel management broadcasted the trespasser’s activities to all housekeeping staff and sent the housekeeping manager and/or supervisors to check on employes, the floor where the battered housekeeper was working was not checked even though the housekeeper’s cart was in front of the room she was assaulted in.
A court of appeal held that the employer responsibilitis under FEHA arose when the trespasser appeared on the premises and began aggressively propositioning hotel employees for sexual favors. The hotel had a duty to take an immedate corrective action to stop the conduct and prevent future harassment from occuring. An employer must “protect a likely future employee victim” once it knows a person’s conduct “places employees at unreasonable risk of sexual harassment”. The more serious or egregious the harassing conduct, the more the employer must do to prevent future harm (7).