By: Virtus Law Group, Birmingham Alabama.
An employer’s liability for harassment that constitutes a hostile work environment, including sexual harassment, depends on the job role of the individual(s) doing the harassing. The standard for employer liability varies depending on whether the harasser is the victim’s supervisor or simply a co-worker. A supervisor is someone who has the authority to significantly change an employee’s employment status.
If The Person Is A Supervisor:
An employer will be held strictly liable for a supervisor’s harassment of their subordinate employee when the discrimination takes the form of a tangible employment action, such as hiring, firing, promoting, demoting, transferring, or disciplining an employee. However, certain write-ups are not always considered tangible employment actions. When a victim’s supervisor takes a tangible employment action against them, they are exercising the authority delegated to them by their employer and, as a result, the employer is automatically responsible for how that authority is exercised.
If the supervisor engages in the harassing behavior, but no tangible employment action is taken, the employer may still be subject to vicarious liability for the hostile environment created by the supervisor who had authority over the employee. In this situation, liability is not automatically imposed on the employer. Instead, the employer may establish the Faragher-Ellerth defense by showing it exercised reasonable care to prevent and correct harassing behavior, and the harassed employee unreasonably failed to take advantage of any preventative or corrective opportunities that could have avoided or reduced the harm.
If The Person Is A Co-Worker:
When the harassing employee is not the victim’s supervisor, a negligence standard is imposed for employer liability. The Supreme Court has held that an employer is liable for unlawful harassment by employees who are not supervisors if the employer was negligent in failing to prevent the harassment from taking place. Essentially, the employer can be held liable for tolerating a hostile work environment created by an employee’s co-workers, and even non-employees, such as customers, if the employer knew or should have known about the offensive work environment but failed to take remedial action.
If an employer is held liable, the employee may recover compensatory damages. This damages award reimburses the victim for things such as lost wages, medical bills, loss of future earning capacity, and other expenses related to their injuries. In cases where an employer intentionally violates employment sexual harassment laws, the victim may also recover punitive damages. Punitive damages exist to punish the employer and deter it from allowing harassing conduct in the future.
Founded in Birmingham, Alabama Virtus Law Group is a Personal Injury and Labor and Employment firm serving the people of Alabama.