When employees are harassed, it is not always the supervisor who is the harasser. But when an employee is harassed, when is the employer liable to compensate the employee who was harassed and in what instances is the employer not liable under Federal Law?
The Supreme Court of the United States (SCOTUS) clarified this on June 24, 2013. The answer to this questions depends largely on the status of the harasser. If the harasser is a supervisor, only then is the employer is strictly liable–that is the employer is liable whether or not it knew or should have known about the harassment; however, if the harasser is a co-worker then the standard which determines whether the employer is liable through vicarious liability is negligence; that is, the employer is only liable if the employer knew or should have known about the harassment.
This of course begs the question, who is a supervisor?
SCOTUS stated that for the purposes of vicarious liability for the employer where an employee is harassed, a supervisor can only be one who is empowered by the employer to take tangible employment actions against the employee who is being harassed. Therefore, if the harasser is not empowered by the employer to take the aforementioned action against the employee, then the employer can only be liable if the employer knew or should have known about the harassment.
What does this mean for you? If you are being harassed by a co-worker and your employer, then you may want to inform your employer of such harassment otherwise your employer may not be liable to compensate you for damages. It will also give your employer to do the right thing and protect you from illegal harassment.