Employer Liability

The EEOC notes that during harassment allegation investigations, it "looks at the entire record: including the nature of the conduct, and the context in which the alleged incidents occurred. A determination of whether harassment is severe or pervasive enough to be illegal is made on a case-by-case basis." Therefore, while employers are liable for workplace harassment, in some cases, it can be difficult to define specifically when and how.

According to the EEOC, "the employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages."

The EEOC also states that the employer can avoid liability in cases of hostile environment sexual harassment if the employer proves:

• It reasonably tried to prevent and promptly correct the harassing behavior
• The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

The employer is additionally liable for harassment by third parties (such as independent contractors or customers) if the employer "knew or should have known about the harassment and failed to take prompt and appropriate corrective action."

This is why it is important that employers create and implement a workplace sexual harassment policy and provide proper training. Without these actions, employers leave themselves open for lawsuits that the courts will more easily rule in the plaintiff's favor.

To learn more about Sexual Harassment Prevention For Employees visit our Cal/OSHA Sexual Harassment Prevention For Employees Online Training web page.