As a sexual harassment lawyer, I am frequently asked: “Who is liable?”

Sexual harassment is a form of discrimination based on the sex of the victim and is prohibited under federal law and California’s Fair Employment and Housing Act (HEFA). FEHA currently provides that, “harassment” because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Of all the employee discrimination claims, sexual harassment claims make up between 20 to 25 percent of all discrimination claims every year.

All Harassers Are Liable For Sexual Harassment

As a general rule, everyone is responsible for his or her own actions and those that commit sexual harassment are no different. An employee that is sexually harassing another employee is liable for his or her own wrongful conduct. This liability is separate and distinct from the employer’s potential liability. Accordingly, a claim can and should be brought directly against any individual that is sexually harassing an employee.

Liability can also extend to other employees or third parties. Individuals that do not actually participate in the sexual harassment, but facilitate the sexual harassment as an aider and abettor can be held liable, too. A good example of aiding and abetting is when the non-harassing person creates a situation allowing the harasser to be alone with or the opportunity to harass the victim—knowing that sexual harassment will likely occur.  Here, the aider and abettor knowingly gives the sexual harasser the opportunity to sexually harass the victim. If another employee or even a third party assists in the sexual harassment, they too can be held personally responsible for the sexual harassment and any damages to the victim.

Employer liability

Coworker: Under FEHA, an employer is liable for sexual harassment by a coworker only if the employer knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

When the harasser is a supervisor, manager or owner, which is usually the case, an employer is strictly liable under FEHA for acts of sexual harassment by the employee. A supervisor is generally one that has the authority to hire, transfer, suspend, promote, reward or discipline other employees or directs the day-to-day duties of the employee and provides information for purposes of evaluating the work of others. Liability is imposed without regard to what the employer knew or should have known about its supervisor’s or manager’s actions.

As a sexual harassment lawyer, I am also frequently asked about recovery for victims of sexual harassment and if they may include punitive damages. Yes.

A victim of sexual harassment is entitled to recover all damages caused by the sexual harassment, including lost wages, benefits, medical costs, any out-of-pocket loss, and emotional injury. The victim is also entitled to payment of his or her attorneys’ fees and costs.

In addition, unless the harasser can show that he or she was unaware that his or her conduct was unwelcome, the victim may be entitled to an award of punitive damages directly against the harasser. Punitive damages is additional compensation awarded in cases of intentional conduct to punish the person that committed the act and to deter others from engaging in the same or similar wrongful conduct.

Under some situations, an employer may be directly liable for punitive damages, if the employer:

  • Hired or retained the harassing individual with knowledge of his or her unfitness for the position and in conscious disregard of others’ rights or safety;
  • Authorized or ratified the wrongful conduct; or
  • Was personally guilty of oppression, fraud, or malice.

In other words, if the decision makers knew that the harasser was committing sexual harassment and didn’t do anything about it or didn’t care enough to prevent or investigate when the sexual harassment was reported, there is a strong case that the employer will be liable for punitive damages.

If you feel that your employer has discriminated against you or you experience workplace harassment, it’s important to speak to a sexual harassment lawyer who specializes in workplace harassment to protect your rights. Discrimination and workplace harassment is serious, but if you do not act quickly, your rights and ability to recover damages may simply expire.