Do employers have vicarious liability for discrimination or harassment?

Businesses are often liable for illegal behavior on the part of their employees toward other employees and customers in the workplace. This so-called “vicarious liability” can apply to situations in which your boss is harassing or discriminating against you.

The U.S. Supreme Court’s rulings in at least two sexual harassment cases have established case law for the responsibility of employers for the behavior and actions of those they place in supervisory positions. The Equal Employment Opportunity Commission (EEOC) provides guidance on it as well.

Employers need to take steps to prevent, stop illegal behavior

What does having vicarious liability for supervisory and managerial employees’ actions toward employees mean for employers? It means that they need to invest time and money in training these employees on what are considered discriminatory or harassing behaviors in the workplace.

The potential for vicarious liability should also incentivize businesses to hold those in supervisory positions (and all employees) accountable if they engage in or allow behavior that could be considered harassment or discrimination against someone in a protected class.

Businesses and their human resources teams can minimize the potential for vicarious liability if they build a culture where employees feel like they can report such behavior and that their report will be taken seriously. If employees fear retaliation for reporting such incidents, as victims or witnesses, they’re more likely to keep quiet and potentially take legal action after they’ve left or things have gotten even worse.

A $20 million settlement

One of the most famous cases of an employer paying a large price for ongoing sexual harassment in recent years involved former Fox News host Gretchen Carlson. She sued the head of the network, Roger Ailes, personally for repeatedly sexually harassing her. However, in 2016, Fox News’ parent company, 21st Century Fox, settled the case for $20 million and made a public apology. There were varying reports about whether Ailes contributed to the settlement payments to Carlson or the other women who soon followed her in reporting harassment by their former boss.

When employers don’t seriously investigate or take action in response to employee claims of illegal actions, they can often be held liable for these actions. If you’re facing unfair treatment in the workplace, it’s important to understand your rights and legal recourse. At Alan C. Olson & Associates, we can help you seek the justice you deserve.


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