Who is the harasser? Supervisor or co-Worker status matters

Whether an employer is liable for workplace harassment under Title VII of the Civil Rights Act or state law oftentimes turns on the status of the harasser. If the employee’s supervisor is the harasser, liability for adverse action harassment is automatic.

If, however, the harasser is a fellow employee or a supervisor other than the employee’s, the employee must show that the employer knew or should have known about the harassing behavior and failed to take prompt and effective action to end it.

Because cases often center on who is doing the harassing, employers must clearly identify who actually has hiring, discharge and disciplinary decision-making authority. Accurate job descriptions and job-appropriate titles—as well as clear lines of authority and chains of command—will show whether the alleged harasser supervised the alleged victim.

When the harasser is not a supervisor

Although an employer is strictly liable for harassment by an employee’s supervisor, when the harasser is a co-worker, the employer is not always liable—if it has done what it needs to do.

To prove that an employer is liable for hostile work environment harassment at the hands (figuratively speaking, of course) of a co-worker, the employee must prove that the employer:

• Had actual or constructive knowledge (meaning it had reason to know) of the harassment and
• Failed to take prompt and effective remedial action.

If the employer has a policy and procedure for handling complaints and can show that the victim never complained to a supervisor or another designated person about the behavior, it may avoid liability.

The law also prohibits harassment by customers, vendors and others who interact with employees in their workplaces. Typically, these cases involve sales or repair people, invited clients or guests.

Employers may even have a duty to protect employees from vagrants who harass, according to one case involving a law school professor. According to the professor, a homeless man, who was allowed access to the law library, began to sexually harass her with hand-delivered letters, voice mail messages and three unsolicited visits to her office. The court allowed the claim to go forward even though the homeless man was not a university employee or even a vendor or invited guest.

Same-sex harassers

Federal law protects against harassment on the basis of gender and sexual harassment by same-sex perpetrators. It does not matter whether the employee and alleged harasser are homosexual or heterosexual. As long as the employee can show that the harassment was based on gender, he or she can allege hostile environment sexual harassment.

The 5th Circuit Court of Appeals, which covers Texas employers, uses a two-step process when evaluating same-sex sexual harassment cases. First, an employee must demonstrate that the sexual harassment was discrimination because of sex. In the case of same-sex harassment, the harassment was because of sex if any of the following apply:

1. The harasser made “explicit or implicit proposals of sexual activity and providing credible evidence that the harasser was homosexual.”
2. The harasser was “motivated by general hostility to the presence of members of the same sex in the workplace.”
3. There is “direct, comparative evidence about how the alleged harasser treated members of both sexes in a mixed sex workplace.”

If the employee demonstrates that the same-sex harassment was discrimination because of sex, then the court must decide whether the conduct was quid pro quo or hostile work environment harassment.

In a recent decision, the 5th Circuit considered whether a lesbian university professor’s alleged harassment by her lesbian supervisor was because of sex. The alleged harassment included suggestive remarks such as, “I wouldn’t mind watching a movie in bed with you,” and provocative touching on the thigh and hand. The supervisor also referred to her as “honey” and “babe.”

Although the court concluded that the harassment was because of sex since both the plaintiff and her supervisor were lesbians, it held that the alleged conduct did not rise to the level needed for either quid pro quo or hostile environment harassment.

Final note: Notwithstanding the status of the harasser, employers must continue to take effective steps to prevent and remedy all workplace harassment. The law requires employers to meet this challenge. The costs to employers, both direct and indirect, of failing to do so are daunting.

With careful attention to thoughtful and intentional compliance efforts, employers can equip themselves to prevent and defend against workplace harassment claims. That means training all managers on harassment and making certain employees know how, when and to whom they should report harassment.

Women as harassers