Who Qualifies as a Supervisor in Harassment Lawsuits Based on Vicarious Liability?

According to the Equal Employment Opportunity Commission, employers are generally subject to vicarious liability for any unlawful harassment committed by a supervisor “with immediate (or successively higher) authority over the employee.”

The federal discrimination laws don’t specifically define the word “supervisor.” Instead, the determination of supervisor status is made based on court decisions and the legislative purposes of the anti-discrimination laws. A key test is whether the authority of the supervisor is “of a sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment.” The supervisor’s job function rather than his/her job title is a key factor.

People qualify as an employee supervisor if:

  • The individual has authority to undertake or recommend tangible employment decisions affecting the employee – or
  • The individual has authority to direct the employee’s daily work activities

The Authority to Undertake or Recommend Tangible Employment Actions

Whether a decision is a tangible employment decision depends on whether the action “significantly change another employee’s employment status.” Examples including firing, demotions, hiring, promotions, and reassigning what work the employee does. The EEOC writings on this topic reference Supreme Court case law that states, “tangible employment actions fall within the special province of the supervisor.”

“As the Supreme Court recognized in Ellerth, a tangible employment decision ‘may be subject to review by higher-level supervisors.’ As long as the individual’s recommendation is given substantial weight by the final decision maker(s), that individual meets the definition of supervisor.”

The Authority to Direct Employee’s Daily Work Activities

A person also qualifies as a supervisor if he/she has the authority to manage the employees daily work activities – even if that supervisor does not have the authority to undertake or recommend tangible employment actions. This is because this type of supervisor can assign undesirable tasks or increase the amount of work the employee has to do. The supervisor status also applies – even if the authority to direct the employee’s daily work activities is temporary – provided the harassment occurred during this temporary time frame.

Workers who just relay instructions or who can assign just a limited number of tasks don’t generally qualify as a supervisor.

An employer may be vicariously liable if the employee reasonably believed the person within the company could make tangible work decisions or could direct the employee’s daily work tasks.

If vicarious liability does not apply, the employer can still be liable if he/she knew of the harassment and failed to take immediate corrective measures.

At the California Law Offices of Stephen Danz and Associates, our employment lawyers have been fighting for the rights of workers for nearly 40 years. For help with any employer harassment claim, call us at 877-789-9707 or use our online contact form to schedule an appointment.