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This is the third entry in a 5-part series about workplace sexual harassment, the Federal and State laws against such conduct, and what you can do if you are or become a victim of harassment. Today’s entry will focus on the concept of liability, and when employers are responsible for harassment occurring in the workplace.

We can probably all agree that companies should be held responsible for most acts that their employees commit while on the job. If a delivery truck wrecks into your car on its way to drop off a package, shouldn’t the delivery company compensate you for the repairs? Or suppose you drop a shirt off at the dry cleaners and it comes back with a hole burned through the fabric. Shouldn’t that company reimburse you the shirt? After all, it was one of their employees who caused the damage. This same reasoning applies when a company’s employee engages in the sexual harassment of another employee. And in a claim for sexual harassment, the responsibility of the employer is another part of the suit that must be proven by the victim.

This concept is known as the question of liability, and is perhaps the most important question that arises when a sexual harassment suit is being litigated. The answer to that question ultimately determines the successful nature of the sexual harassment claim. If an employer is held liable for its employees’ harassing conduct, it is then responsible for compensating the victim for the harassment he or she has suffered. On the other hand, an employer escapes this responsibility if a court finds that the employer isn’t liable for any of the harassment that occurred. Like all other issues in a sexual harassment claim, the liability of the employer has to be proven by the victim filing suit.

Two Types of Liability

There are two standards, or types, of liability that courts apply to sexual harassment cases: vicarious liability and negligence. Courts apply either one standard or the other to a case depending on that case’s particular circumstances. The differences between vicarious liability and negligence are best understood by examining what a victim must prove in order to establish an employer’s liability under each standard.

Vicarious Liability

The basic definition of vicarious liability is holding someone responsible for the wrongful acts of another person. In an employment context, this is known as respondeat superior, a Latin phrase meaning “let the master answer.” Vicarious liability is found where an employee commits harassment while acting within the scope of his or her duties, or in other words, when acting in the capacity of the position he or she holds. If a court finds an employer vicariously liable for an employee’s harassment, it is holding the employer automatically responsible for that employee’s actions.

Vicarious liability is only found when the harassing employee is a supervisor. Supervising employees, as compared to other co-workers, are able to make decisions that can affect the status of a lower employee’s job — hiring, firing, promoting, demoting, etc. These types of decisions are referred to by courts as “tangible employment actions.”

An employee that has been provided with this degree of authority over other employees is in the unique position of actually acting as or on behalf of the employer they work for. In the eyes of the court, if your supervisor demoted you for refusing his or her sexual advances — a classic quid pro quo harassment as we discussed in our previous entries — it is as if your employer itself demoted you, and in turn, harassed you. In order to prove vicarious liability is the correct standard of liability in a sexual harassment suit, a plaintiff need only show that the harassing supervisor had the authority to make “tangible employment actions,” and was acting within the scope of his or her duties when the harassment occurred.

The Effect of a “Tangible Employment Action”

Courts automatically assign vicarious liability to an employer if a supervisor’s harassment of another employee actually results in one of those “tangible employment actions” defined above. This almost always spurs from a quid pro quo situation. However, vicarious liability can also be found when a supervisor’s harassment is not coupled with a tangible employment action. This could be the case if, say, your supervisor threatened to fire you for refusing his or her sexual advances but didn’t follow through with the threat. Also common would be a situation in which your supervisor’s actions created a hostile work environment.

A hostile work environment, as you’ll recall from our previous entries, is an intimidating, offensive, or abusive workplace atmosphere created by the unwelcome, inappropriate sexual behavior of other co-workers. In addition to other co-workers, supervisors can be responsible for this type of environment as well. If a hostile work environment is created by a supervisor, courts also apply a vicarious liability standard. In this situation, however, employers can escape liability for their supervisors’ actions if they can successfully raise an affirmative defense.

The Faragher Affirmative Defense

An affirmative defense is a legal term for when a defendant acknowledges that a legal wrong took place, but has a legally justified reason for why it is not responsible for that wrong. The affirmative defense for sexual harassment by a supervisor that doesn’t involve a “tangible employment action” is found in the 1998 Supreme Court case Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). The defense has two elements, or requirements, that, if proven by an employer, will eliminate that employer’s responsibility for its supervisor’s harassment.

The first element an employer must prove is that it reasonably tried to prevent and correct any sexual harassment. A strict anti-harassment policy, especially one that provides a way for employees to make complaints about harassment, is good evidence that a company has tried to prevent workplace harassment. Similarly, once an employer learns of harassment occurring, disciplining or firing the harassing supervisor would show that it tried to correct the problem.

The second element an employer must prove is that the victim failed to use the available means to protect her or himself from the harassment provided by the company. For example, if a company has a system for filing harassment complaints, and a victim of harassment failed to use that complaint system, the company could use this evidence to fulfill this element.

In order for this defense to be successful, employers have to prove bothof the above elements — proving one and not the other simply isn’t enough. In that case an employer would still be vicariously liable for a hostile work environment created by its supervisors, or for that matter, any other type of harassment by a supervisor not resulting a “tangible work action.”


Often times sexual harassment will not originate from an employee’s supervisors, but will instead be the product of his or her co-workers. In these cases vicarious liability is not available as a theory of liability for the plaintiff. As opposed to supervisors, mere co-workers don’t possess the authority to make decisions amounting to “tangible employment actions,” and for this reason cannot be said to be acting on behalf of the company. Because co-workers lack this sort of relationship with their employers, a plaintiff must show that the employer did something wrong to make a successful sexual harassment claim. In other words, an employer must have been negligent in letting the harassment occur in order to be liable to the victim.

Negligence in the employment context is defined as the failure to do something the employer has a duty to do, and is a harder standard to prove than vicarious liability; it requires that the plaintiff in a sexual harassment suit establish that (1) the employer knew or should have known about the harassing conduct, and (2) that the employer failed to stop the conduct.

Knowledge of the Harassment

More often than not, a plaintiff can prove the first element by showing that he or she made a complaint of the harassment according to the provisions of the employer’s anti-harassment policy. However, this element can sometimes prove difficult to establish. Suppose that you report a co-worker’s harassment to your immediate supervisor, but your company’s anti-harassment policy states that all complaints should be made to another department. If your supervisor fails to report the complaint to the appropriate department, can it be said that the company knows about the harassment? The answer is likely yes, but in order to make certain that your complaint is heard, you should always follow the protocol outlined in your company’s anti-harassment policy.

The Employer’s Response to the Harassment

The second element of negligence turns on the employer’s response to the harassing conduct once it learns of its existence. A company’s failure to respond to a complaint in any way would obviously be enough to establish negligence, but even if the company does take some sort of action, there’s a chance it may still be deemed negligent. In those situations, courts often look to the adequacy of the response. Did the employer’s action end the harassment? Did it discipline the harassing employee? And was that discipline proportionate to the severity of the harassment? All of these questions may be taken into consideration by the court, and negative findings may result in assigning liability to the employer for its employees’ conduct.

Supervisor or Co-worker?

At this point, you now know that an employer’s responsibility for its employee’s harassing conduct depends on the role of the harasser — supervisor or co-worker. But the defining line between those two types of employees is not as clear as it might seem. For example, would you consider the person who schedules your hours to be a supervisor? What about the employee who assigns duties at the beginning of a shift?

While those duties certainly seem to indicate supervisor status, unless those employees are also authorized to make the “tangible employment actions” we’ve been discussing throughout this article, they are only co-workers for the purposes of a sexual harassment claim. While that may not reflect the realities of the modern workplace, it is the way that the Supreme Court has decided to structure its analysis for sexual harassment claims.

Moving Forward

That wraps up this edition of our Sexual Harassment in the Workplace series, and draws to a close the portion of the series tackling the ins and outs of a sexual harassment claim. Moving forward, we’ll be examining some real life sexual harassment cases, and how they may apply to you.

Our goal is for these articles to provide you with the information you need to recognize sexual harassment if it occurs at your workplace, and what to do if it does. If at any time you believe you are being harassed or discriminated against because of your gender, race, religion, age, or disability, you should seek legal help. McCarty & Abney are experienced in all areas of employment discrimination and will fight to make sure your rights are protected and restored. Contact us today to further discuss your claim.