Even if the employer is not the instigator of retaliation, discrimination, or a hostile environment, the employer can still be held liable for acts committed by its employees and agents under certain circumstances. Title VII of the Civil Rights Act of 1964 addresses employment discrimination and generally guides these topics.
First, an employer will be held liable for discriminatory actions of a supervisor if the actions produce tangible results. Tangible results are those affecting employment, such as hiring, firing, promoting, failing to promote, determining compensation, and assigning work.[1] For the purposes of liability under Title VII, a supervisor is any employee who has the power to take tangible employment actions against the injured employee.[2] Title VII says that discrimination based on an individual’s race, color, religion, sex, or national origin that affects tangible results is unlawful.[3] The Supreme Court has ruled that proof of a supervisor’s tangible employment action changes the terms and conditions of employment, and the employer will be held strictly liable.[4]
Second, even if no tangible action is produced, an employer can still be held liable for actions of a supervisor unless the employer establishes an affirmative defense. An affirmative defense can be immediate action to prevent and correct any discriminatory action, or it can be proof that the plaintiff employee did not take advantage of preventive or corrective opportunities provided by the employer or to prevent harm.[5] For example, if an employer takes action to make sure that employees in a certain job role are all paid equally, regardless of race, this may be regarded as an action to prevent or correct discriminatory action. Similarly, an employee may be obligated to report concerns about pay to human resources, and if the employee does not, it may be determined that he or she did not take advantage of preventive or corrective opportunities.
Many employers believe that having a policy on harassmentor conducting anti-harassment training is sufficient to prevent claims of harassment. Possessing an anti-harassment policy and compliance procedure is not required as a matter of law; however, it can be considered when determining the level of the employer’s care.[6] It is more important, though, that employers abide by the standards of that policy and enable their management to enact the policy as they were trained to do. Simply having a policy and requiring training does not mean that courts will ignore real discrimination that occurs despite these things.[7]
Third, an employer can be held liable for acts of coworkers of the injured employee. There are two requirements to establish employer liability in this case. First, the coworker must have the authority to cause psychological harm by assigning unpleasant work tasks or creating an objectionable work environment.[8] Second, the injured employee must prove that the employer was negligent by allowing the harassment to occur.[9] When determining whether an employer was negligent, the Supreme Court has held that the jury should be instructed to consider how much and what kind of authority the harasser holds.[10]
[1] Faragher v. City of Boca Raton, 524 U.S. 775, 790, 807 (1998).
[2] Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013).
[3] 42 U.S.C.A. § 2000e-2 (West).
[4] Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753–54 (1998).
[5] Faragher 524 U.S. at 807.
[6] Id.
[7] Id.
[8] Vance, 133 S. Ct. at 2451.
[9] Id.
[10] Id.
