Pervasive, severe harassment in the workplace can create a hostile work environment, i.e., one that a reasonable person considers abusive or intimidating. Harassment involves unwelcome conduct with a basis in a protected status of the employee. Protected statuses include sex and gender identity, disability, age, race and religion.
Depending on the circumstances, an employer can be liable for harassment that takes place on the premises. This is true even if the employer does not participate in the harassment directly.
Liability for harassment by non-employees or non-supervisory employees
According to the Equal Employment Opportunity Commission, an employer is responsible for those on the premises over whom he or she has control. This includes employees in non-supervisory positions. It also includes non-employees, such as customers on the premises or independent contractors who perform work for the employer despite not being on the regular payroll.
If an employer fails to take appropriate corrective action promptly for harassment that he or she knows about, or should be aware of, it is possible to hold him or her liable.
Liability for harassment by supervisory employees
Harassment by employees who have supervisory authority over others is more serious because it can result in adverse employment actions against the target of the harassment. An employer is almost always liable for harassment by supervisors. He or she can only avoid liability for harassment by supervisors under the following conditions:
- The employer provided corrective or preventive opportunities of which the employee failed to take advantage.
- The employer made a reasonable attempt to correct and prevent the harassing behavior in a timely manner.
The burden of proof is on the employer to show that he or she should not be liable for harassment by supervisors based on these conditions.