California employers and employees should understand these four important issues concerning discrimination, harassment and retaliation in the workplace. 

An Employer Is Automatically Liability For Its Supervisors’ and Managers’ Harassing Or Discriminatory Actions.

An employer is automatically liable for any harassment or discriminatory actions taken by its supervisors and managers, even if upper management had no knowledge of the wrongful conduct. Under California’s Fair Employment and Housing Act (FEHA), a supervisor is defined as anyone who has the authority to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend these actions to the employer.

The definition of supervisor under FEHA is very broad and does not rely on the title given to or the company’s written job description of the harassing employee. Rather, it requires a realistic determination of the harassing employee’s actual authority given to him or her by the employer. This means even those employees without supervisor titles and those simply designated as team leaders could be considered a supervisor under the FEHA definition and, therefore, the company would be strictly liable for the discriminating or harassing conduct.

To Be Strictly Liable For A Non-Supervisory Employee’s Harassment, The Employer Must Have Known, Or Should Have Known, About The Harassment.

All employees are responsible for their harassment of another employee and are a proper defendant in a lawsuit seeking damages for harassment. However, when an employee is being harassed by an employee that does not qualify as his or her supervisor (a colleague or fellow employee), the employer can only be held liable for the workplace harassment, if it knew about the harassment or should have known about harassment, and failed to take corrective action to stop the harassment.

One way to rationalize the employer’s strict liability for supervisors v. non-supervisors is that employers act and make decisions through their supervisors and managers. So, the employer is imputed with knowledge of its supervisors’ and managers’ conduct. If California employers were not strictly liable for the conduct of their supervisors and managers, there would be no incentive for companies to proactively train their supervisors and managers to eliminate illegal discrimination, harassment and retaliation.

Individual Employees Are Rarely Responsible For Discrimination.

Any employee working for a company covered by FEHA can be held personally liable for harassment that the employee engages in. However, supervisors are not held personally liable for discrimination or retaliation. This is because the basic job duties of a supervisor could be viewed as discriminatory, such acts include demotions, transfers, reduction in schedule, hiring and firing. Therefore, the law does not impose personal liability on supervisors for their day-to-day duties. However, it is important to remember that even though the supervisor does not have personal liability for discrimination or retaliation, the employer will always be liable for the misconduct of its supervisors or manager.

Reporting And Complaining About Discrimination, Harassment And Retaliation Is Very Important. Failing To Follow Company Policy In Reporting Such Illegal Behavior Could Reduce Or Altogether Eliminate The Company’s Liability.

A powerful defense of the employer to reduce or eliminate an employee’s damages is for the employee to fail to report the discriminatory, harassing, or retaliating conduct. The legal name for this defense is the Avoidable Consequences Doctrine. Under the Avoidable Consequences Doctrine an employee’s damages can be reduced or eliminated if the employer can show that: (1) It took reasonable step to prevent harassment; (2) The employee unreasonably failed to utilize the procedures put in place by the employer to prevent and report harassment; and (3) Had the employee used the procedure to prevent and report the harassment some of the damages, or all of the damages, would have been prevented.

For employees to preserve their right to seek full compensation for workplace discrimination, harassment and retaliation, the employee must utilize the employers’ reporting procedure. On the other hand, employers can seriously reduce their liability by having a complaint system that is fair and thorough. While not everyone agrees that the Avoidable Consequence Defense is fair to the employee, it makes sense to reward employers’ for putting in place an internal system to report, investigate, and remedy workplace discrimination, harassment and retaliation.

If you have been subjected to discrimination, harassment, or retaliation its important to talk to an employment lawyer, so that you have someone on your side to protect your rights. We can help you take the necessary steps to eliminate the illegal behavior and preserve your rights against the employer. Initial consultations and evaluations for employment related violations are confidential and free, so there is no cost to you to find out if you have a valid concern and are entitled to compensation.