Sexual harassment is a pervasive issue in the workplace, and California employment law provides several avenues for employees to address this problem. One such avenue is the strict liability standard that applies to harassment committed by a supervisor or someone with supervisory authority.
What is the Strict Liability Standard?
Under a strict liability standard, an employer is held strictly liable for any sexual harassment committed by a supervisor or someone with supervisory authority, regardless of whether the employer knew or should have known about the harassment. This means that the employer is responsible for the actions of its supervisors, even if the employer did not participate in, approve of, or have knowledge of the harassment.
The rationale behind strict liability is that supervisors have the authority to hire, fire, promote, and discipline employees, which gives them significant power over their subordinates. This power dynamic can make it difficult for employees to resist or report harassment by their supervisors, which is why employers must take steps to prevent and address such harassment.
The strict liability standard for a supervisor's harassment in California employment law is based on the California Fair Employment and Housing Act (FEHA). FEHA prohibits discrimination and harassment based on certain protected characteristics, including sex, gender identity, and sexual orientation.
The California Supreme Court first recognized the strict liability standard for supervisor harassment in the landmark case of State Dept. of Heath Services v. Superior Court (2003) 31 Cal.4th 1026. In State Dept., the court held that because the FEHA imposes a negligence standard on employers only for sexual harassment by an employee other than an agent or supervisor, by implication the FEHA makes the employer strictly liable for all acts of sexual harassment by a supervisor. Several other cases have reaffirmed, and expanded upon, the strict liability standard for supervisor harassment in California employment law. For example, in Chapman v. Enos (2004) 116 Cal.App.4th 920, expanded upon the definition of a "supervisor" by finding that an employee who did not have the authority to hire or fire the plaintiff was still considered a supervisor because they directed the plaintiff's day-to-day activities, defined their role in meetings, and provided feedback about their work for evaluation purposes.
Who is Considered a "Supervisor?"
Under the FEHA, a "supervisor" is an individual who meets at least one of two criteria:
Has the power to perform certain employment actions such as hiring, firing, promoting, disciplining, or assigning other employees, or
Has the responsibility to oversee and guide the work of other employees, handle their grievances, or make recommendations regarding such matters, but only if exercising such power or responsibility requires independent judgment.\
What Constitutes Harassment by a Supervisor?
For the strict liability standard to apply, the harassment must be committed by a supervisor or someone with supervisory authority. A supervisor is generally defined as someone who has the authority to hire, fire, promote, or discipline employees, or who has a significant role in the employment decisions of the victim.
Harassment can take many forms, including unwanted sexual advances, comments, gestures, or physical contact. The harassment must be severe or pervasive enough to create a hostile work environment, which is defined as an environment that is so hostile or abusive that it interferes with the victim's ability to perform their job. In addition to being severe and pervasive, harassment in the form of a quid pro quo is also illegal in California employment law. Quid pro quo harassment occurs when a supervisor or someone with authority in the workplace demands sexual favors or other forms of intimacy in exchange for job benefits, such as a promotion, a raise, or a favorable performance review.
What if the Harassment is Unconnected with the Employment?
If a victim's supervisor engages in off-duty harassment that is not sufficiently connected to their employment, employers cannot be held liable. The California Supreme Court clarified this in State Department of Health Services v. Superior Court, stating that an employer's strict liability analysis for supervisor harassment assumes the harassment occurred while the supervisor was acting in their capacity as a supervisor. The employer is not strictly liable if the supervisor's harassment arises from a completely private relationship unrelated to employment, and it does not occur at the workplace or during normal working hours.
For example, the plaintiff in Myers v. Trendwest Resorts, Inc. (2009), 178 Cal.App.4th 239, alleged sexual harassment stemming from unwanted groping. The Court of Appeal for the Third Appellate District of California explained that an employer can only avoid strict liability for the supervisor's actions under FEHA if the harassment arises from a completely private relationship unconnected with the employment. However, in Myers, there was no such private relationship as the harassment occurred during work-related driving excursions, and the harasser and plaintiff did not have a personal dating relationship at the time of the harassment. Consequently, the Myers court held the employer strictly liable for the harassment. See also, Doe v Capital Cities (1996) 50 Cal.App.4th 1038, 1050 (harassment occurring at casting director's home was connected with employment because plaintiff reasonably "believed his attendance had something to do with advancing his ambition to obtain employment as an actor"), with Capitol City Foods, Inc. v Superior Court (1992) 5 Cal.App.4th 1042, 1049 (rape committed by a supervisor, which occurred off-duty and outside the workplace, was not considered connected with employment.)
How May Employers Try to Escape Strict Liability?
While the strict liability standard for harassment by a supervisor in California employment law places a significant burden on employers to prevent and address harassment in the workplace, some employers may try to escape liability by arguing that they took reasonable steps to prevent and correct any harassing behavior. Here are some common defenses that employers may use to escape strict liability:
Anti-harassment policies: Employers may argue that they had effective anti-harassment policies in place and took appropriate steps to prevent harassment, such as providing training and investigating complaints. However, simply having a policy is not enough. Employers must also ensure that the policy is communicated effectively to all employees and that it is enforced consistently. The employer must also demonstrate that the policy was effectively communicated to all employees, that it was enforced consistently, and that it included adequate reporting and investigation procedures. Even if the employer had an effective policy in place, they may still be held strictly liable if the harassment was severe or pervasive and they did not take appropriate action to address it.
Prompt remedial action: Employers may argue that they took prompt and appropriate action to address any harassment that was reported to them. For example, they may argue that they conducted a thorough investigation and took disciplinary action against the harasser. However, if the harassment was severe or pervasive, the employer may still be held strictly liable. While taking prompt and appropriate action to address harassment is important, it may not be enough to escape liability if the harassment was severe or pervasive. Additionally, the employer must show that they took reasonable steps to prevent the harassment from recurring in the future. For example, they may need to provide additional training or supervision to the harasser, or take disciplinary action up to and including termination.
Avoidable Consequences Doctrine: The avoidable consequences doctrine holds that if a person suffers harm due to someone else's wrongful conduct, they cannot receive compensation for damages that they could have reasonably avoided through reasonable effort or expense. In other words, the injured party has a duty to mitigate their damages to the extent possible, and cannot simply sit back and collect damages without taking steps to minimize their losses. If an employee fails to report harassment to their employer in a timely manner, damages can only be reduced if the employer had established anti-harassment policies and procedures, and acted upon previous harassment complaints. Employers can limit their liability for damages by raising affirmative defenses in such cases. However, the Avoidable Consequences Doctrine limits only damages, not liability.
Lack of knowledge: Employers may argue that they were not aware of the harassment and therefore cannot be held liable. However, under the strict liability standard, employers can be held liable even if they were not aware of the harassment, as long as the harassment was committed by a supervisor or someone with supervisory authority.
While these defenses may be raised by employers, they are not always successful in escaping strict liability. The courts will consider the specific circumstances of each case and determine whether the employer took reasonable steps to prevent and address harassment in the workplace. Employees who have experienced harassment by a supervisor should seek legal advice and take appropriate action to protect their rights and hold their employer accountable.
What Should You Do If You Experience Harassment by a Supervisor?
If you experience harassment by a supervisor, there are several steps you can take to address the issue:
Report the harassment to your employer: You should report the harassment to your employer as soon as possible. Your employer is required to investigate the harassment and take appropriate action to address it. If at all possible, the report should be in writing so that there is a clear record of it.
Document the harassment: Keep a record of the harassment, including the date, time, location, and any witnesses. This will help you provide a detailed account of the harassment to your employer or any legal authority you may need to report it to.
Seek legal advice: If you are not satisfied with your employer's response to the harassment, or if you believe your employer is not taking the harassment seriously, you may need to seek legal advice. Contact us as soon as possible for a consultation.