Finding the Facts - Disciplinary and Harassment Investigation

2/15/2019

Enforcement Guidance: Vicarious Employer Responsibility for Unlawful Harassment by Supervisors

The U.S. Equal Employment Opportunity Commission

Number

NOTICE

915.002

EEOC

Date

6/18/99

1. SUBJECT: Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors 2. PURPOSE: This document provides guidance regarding employer liability for harassment by supervisors based on sex, race, color, religion, national origin, age, disability, or protected activity. 3. EFFECTIVE DATE: Upon receipt. 4. EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix B, Attachment 4, § a(5), this Notice will remain in effect until rescinded or superseded. 5. ORIGINATOR: Title VII/EPA/ADEA Division, Office of Legal Counsel. 6. INSTRUCTIONS: File after Section 615 of Volume II of the Compliance Manual. 6/18/99 /s/ Date Ida L. Castro Chairwoman Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors I. Introduction

Notice Concerning the Supreme Court � s Decision in Vance v. Ball State University , 133 S. Ct. 2434 (2013) The standard for employer liability for hostile work environment harassment depends typically on whether or not the harasser is the victim�s supervisor. An employer is vicariously liable for a hostile work environment created by a supervisor. In Vance v. Ball State University , 133 S. Ct. 2434 (2013), the Supreme Court rejected in part the EEOC�s definition of �supervisor.� The Court held that an employee is a �supervisor� if the employer has empowered that employee �to take tangible employment actions against the victim, i.e. , to

In Burlington Industries, Inc. v. Ellerth , 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton , 118 S. Ct. 2275 (1998), the Supreme Court made clear that employers are subject to vicarious liability for unlawful harassment by supervisors. The standard of liability set forth in these decisions is premised on two principles: 1) an employer is responsible for the acts of its supervisors, and 2) employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment. In order to accommodate these principles, the Court held that an employer is always liable for a supervisor’s harassment if it culminates in a tangible employment action. However, if it does not, the employer may be able to avoid liability or limit damages by establishing an affirmative defense that includes two necessary elements: the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While the Faragher and Ellerth decisions addressed sexual harassment, the Court’s analysis drew upon standards set forth in cases involving harassment on other protected bases. Moreover, the Commission has always taken the position that the same basic standards apply to all types of prohibited

https://www.eeoc.gov/policy/docs/harassment.html

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