Employer Wants to Rehire the Harasser I Complained About


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Employers are often held responsible for the acts of their employees, including supervisors and coworkers. Vicarious liability in this context is premised on the principle that employers are generally responsible for the acts of their supervisors and that employers are expected to prevent harassment in the workplace. If an employer rehires a person who it knows has committed harassment in the past, it may be subject to potential liability if harassment recurs.

Vicarious Liability

The United States Supreme Court has stated on multiple occasions that employers are subject to vicarious liability for unlawful harassment by supervisors. Furthermore, the Supreme Court held that an employer is always liable for a supervisor’s harassment if it culminates in a tangible employment action.

A tangible employment action is one that causes a significant change in employment status that requires an official act of the business, is usually documented in the employer’s records, is subject to review by higher level supervisors and requires the formal approval of the business. It is one that usually results in direct economic harm. It may involve such decisions as hiring, firing, demoting, promoting, failing to promote, making an undesirable reassignment, changing work assignments, making compensation decisions or making a decision that adjusts a change in benefits. However, other acts may be considered tangible employment actions when they result in a significant change in employment status. It is a tangible employment decision if the employee submits to the demands and receives the benefits or rejects the demands and is subject to adverse action.

Supervisor Defined

Employers can be held liable for the acts of their supervisors. A supervisor is defined as someone who has authority to make tangible employment decisions or recommend such decisions or the individual has authority to direct the daily work activities of the employee. The supervisory status can apply even if he or she did not have the final say in the employment decision. Even if the supervisor does not have the technical ability to recommend or make a tangible employment decision, he or she can still be found to be a supervisor when he or she can direct the work activities. The supervisor can increase the employee’s workload or assign undesirable tasks, which is meaningful employment action that makes employers vicariously liable. This includes individuals who are temporarily authorized to direct these activities. A supervisor does not include someone who relays the instructions of a supervisor but does not have the authority to modify or reassign these instructions.

Employer Liability

Employers are always liable for a supervisor’s harassment. No affirmative defense is available in these cases. An employer may assert as a defense that the adverse employment action was made for a non-discriminatory purpose. However, the court may determine that this reason is merely a pretext to hide a discriminatory motive. A strong inference of discrimination arises when a harassing supervisor makes or has a significant input into a tangible employment action that affects the victim. If the employer produces evidence of a non-discriminatory reason for the tangible employment action, the employee has the burden of establishing that the reason it asserts is merely a pretext that was designed to hide the real discriminatory motive.

When there is not a tangible employment action and the supervisor creates an unlawful hostile environment, the employer may be able to raise an affirmative defense to avoid or reduce liability. This affirmative defense requires that the employer show that it exercised reasonable care to prevent and correct harassment in a prompt manner. Additionally, the employer will need to show that the employee unreasonably failed to take advantage of these opportunities.

Affirmative Defense

If the harassment did not result in a tangible employment action, the employer can avail itself of an affirmative defense and potentially avoid liability altogether or reduce damages by showing that it exercised reasonable care to prevent and correct any harassing behavior in a prompt manner and that the employee unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided.

Hostile Work Environment

Employers can also be held liable if their supervisors or the party’s coworker causes harassment that is so objectively offensive that it alters the conditions of the victim’s employment to create a hostile work environment. A hostile work environment results when the harassment is so severe or pervasive that it alters the conditions of employment. The employer can be held liable when it knew or should have known about the harassment. The employer has a possible defense if it can show that it took immediate and appropriate action.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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