The answer to this, as it is for many HR questions is, “It depends.” I am going to try to give you a “non-legal” answer to this question since I am not an attorney, but I hope to get across to you just how much responsibility you bear as an employer for the actions of you managers and supervisors and for that matter all your employees.
I know you are thinking “Wait, he said this would be non-legal and he starts with Respondeat Superior!” Sorry about that, but it is a term you should be aware of. According to attorney Hugh McCabe, of NeilDymott, “Respondeat Superior in Latin literally means ‘let the superior make answer.’ “ It is equivalent to another legal term that is a bit easier to understand, “vicarious liability.” This means that employers are responsible for any wrong-doing by all of their employees that cause others harm. This is known as “tort” and that is what you get sued over. According to McCabe “The rule is based on the policy that losses caused by the torts of employees, which as a practical matter are certain to occur in the conduct of the employer’s enterprise, should be placed on the enterprise as a cost of doing business.” (Note: this was his citation of (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280) Tort is a common law action that is tried generally in civil court. Decisions can be made by judges or by juries.
Types of torts
The types of employee actions that can land an employer in a lawsuit cover a lot of areas. These include things like your truck driver rear-ending the car in front of him because he was following too close; your counter-clerk punching a customer in the face because the customer was angry; or, well you can probably think of as many situations as I might be able to. There is one action that involves wrong-doing internally that will involve an employer under federal law before it gets to civil court.
Title VII of the Civil Rights Act of 1964 made sexual harassment of any sort illegal, although this was not really affirmed by the Supreme Court until 1986. While all companies have to watch out for sexual harassment in all situations it has an additional responsibility in paying attention to the actions of managers and supervisors. The courts have taken a look at the actions of supervisors and managers in a couple of situations. First, if the action of the supervisor results in “tangible employment action”, such as a loss of job, demotions, failure to promote, etc., then the company is ALWAYS responsible for the actions of that supervisor. In cases where there is no tangible action then the company may have some relief, called an affirmative defense, if they can show they worked to prevent such harassment and corrected the harassment situation AND that the employee who suffered the harassment did not take advantage of corrective and preventive opportunities. This does not necessarily relieve the company of responsibility, but it may lessen the damages.
How companies can protect themselves
To have the opportunity to claim an affirmative defense of “it’s not our fault” the following must be in place:
- A sexual harassment policy that provides examples of improper behavior and a reporting procedure that allows someone the opportunity to report harassment in several different ways;
- Proof that supervisors have been trained on the policy and they acted in disregard of the policy;
- Proof that the person claiming harassment did not follow the procedures outlined in the policy.
All of this means documentation.
It is also a very good idea to continually train ALL employees on the sexual harassment policy. The more people know about it and how to deal with it, the better off everyone will be.
For more information see
Harassment Prevention Training. Use Priority Code OMEGAHR to get 15% OFF.