EEOC Guidance Explains Liability for Supervisor's Harassment    |     Free Harassment Policy

Definition of a Supervisor
Liability for a “Tangible Employment Action”
Liability if No “Tangible Employment Action”
Steps Employers Can Take to Meet the Reasonable Care Standard
What Is the Message for Employers?

The EEOC has issued guidelines explaining an employer’s liability for a supervisor’s acts of harassment. Adopting the Supreme Court’s standard for sexual harassment, the EEOC has extended the rule to all forms of harassment. This article analyzes the Guidance and discusses the implications for employers. Get your FREE access to this and 100's of FREE HR resources today.

Responding to questions about the effect of two Supreme Court decisions on sexual harassment, the Equal Employment Opportunity Commission (EEOC) issued a Guidance to explain when an employer is liable for harassment by its supervisors. The EEOC adopted the standard set out in Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998) that employers can avoid liability for supervisors who engage in hostile work environment harassment if the harassment does not result in a tangible employment action (such as termination, demotion, or transfer) that affects the harassed employee. The EEOC’s Guidance does not apply exclusively to sexual harassment, which was the focus of the Supreme Court; it also addresses harassment based on race, color, religion, national origin, age, protected activity (such as opposing discrimination or participating in a complaint), and disability.

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Even though the Guidance is not binding on the courts or employers, it is an indication of how EEOC examiners will view claims that are filed with the EEOC. The Guidance covers three main topics: identifying who is a supervisor, harassment by a supervisor that results in a tangible employment action, and harassment that does not result in a tangible employment action.

The Guidance begins by defining the term “supervisor.” The federal discrimination statutes do not use this term. Instead, they make employers liable for the discriminatory acts of their “agents,” which has been interpreted to include supervisors who have the authority to make decisions on behalf of the employer. According to the EEOC Guidance, a person who meets any one of the following criteria may be considered a supervisor:

1. The person has authority to recommend actions that affect an employee’s employment status, such as hiring, firing, or demoting.

2. The person has authority to direct the employee’s daily work activities, including workload, assignments, and eligibility for training.

3. The person is not the actual supervisor, but the employee reasonably believes the individual has authority over him, either because the chains of command are not clear or the individual is perceived as powerful enough to affect the employee’s position.

In determining whether an employer can be liable for its supervisor’s actions, the EEOC distinguishes between harassment that results in a “tangible employment action” and that which does not. A tangible employment action is defined as a significant change in an employee’s employment status that usually has economic consequences for the employee and includes hiring, firing, promotion and failure to promote, demotion, and compensation decisions. Insignificant changes, such as a change in job title, do not count if no other aspects of the job, such as salary and duties, are changed. If a supervisor’s harassment results in a tangible employment action, the employer automatically will be found liable for the supervisor’s actions unless it can show a nondiscriminatory reason for the action.

Alternatively, if harassment does not result in a tangible employment action, the employer may avoid liability for a supervisor’s actions if it can prove both of the following elements:

1. The employer exercised reasonable care to prevent and correct promptly any harassment. To meet this standard, the employer should disseminate and enforce its policy and complaint procedure and take the necessary steps to prevent or correct harassment. (See below for more information on reasonable care.)

2. The employee unreasonably failed to take advantage of the employer’s preventive or corrective opportunities or to otherwise avoid harm. For example, if the employee does not complain about the harassment, the employer may use this as a defense. However, if the employee felt the complaint mechanism was ineffective or feared retaliation, the employer would not meet the standard.

The EEOC suggests several specific steps that employers can take to show that they used reasonable care in preventing and correcting harassment:

• Establish a policy and complaint procedure. This policy should contain the following elements: a clear explanation of the prohibited conduct, including a statement that the employer will not tolerate harassment; assurance against retaliation; assurance of confidentiality; a complaint process that provides prompt, thorough, and impartial investigation; and a promise of immediate corrective action. In addition, the employer must show that the policy has been effectively implemented, for example, by providing to all employees copies of the policy and complaint procedure and training them about their rights and responsibilities.

• Make sure the complaint procedure is effective. Encourage employees to come forward with complaints and allow them to complain to someone other than their supervisors.

• Protect the confidentiality of harassment allegations. Share information on a “need to know” basis and keep records confidential. However, do not promise absolute confidentiality since some information will have to be revealed to complete the investigation.

• Investigate allegations promptly, thoroughly, and impartially. As soon as you learn about a complaint of harassment, you should investigate. Typically, an investigation should include talking to the complaining employee, the alleged harasser, and any witnesses to the activity.

• Take appropriate corrective action designed to stop the harassment. After you have weighed the evidence and determined that harassment occurred, decide what corrective action you should take. The remedial measures do not have to be ones the complaining employee prefers or requests, but they must be reasonably designed to stop the harassment and correct its effects. Appropriate corrective action may include an oral or written warning, reassignment, suspension, or discharge.

The EEOC is sending a very clear message: Employers have a duty to prevent and correct harassment in the workplace and should establish an antiharassment program. In addition to following the EEOC’s suggestions for meeting the reasonable care standard (see above), you can take several extra steps to implement effective policies and procedures, including:

• Train supervisors. Anyone who exercises authority over other employees should be trained in the organization’s policies and procedures and how to implement them.

• Get HR involved in employment actions. HR personnel should be consulted when decisions are being made regarding hiring, firing, promotion, or demotion. To help avoid automatic liability, employment actions need to be reviewed before they are final.

• Take prompt action on every complaint. No matter how insignificant the complaint seems, do not ignore it. Even if there are only rumors rather than an actual complaint, you should investigate.

• Prevent possible charges of retaliation. Any adverse employment actions (such as denial of promotion, demotion, and discharge) targeting an individual making a complaint or involved in the investigation may bring charges of retaliation against the employer.

For more information see “Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors,” available on the EEOC Web site at www.eeoc.gov/docs/harassment.html; EEOC Q&A’s for Small Employers www.eeoc.gov/docs/harassment-facts.html.

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This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.