When many people think of sexual harassment in the workplace, it brings to mind coercive bosses and oppressive business owners taking advantage of younger workers beneath them. But what about when the harasser is a coworker? Is an employer responsible for sexual harassment by its employees?

In this post I will discuss whether an employer can be held liable for sexual harassment or discrimination by its employees. I will explain when an employee can sue under federal law for the behavior of his coworkers or supervisors. And I will lay out what an employee should do if she wants to hold her employer responsible for sexual harassment committed by its employees.

The Civil Rights Act Protects Employees Against Sexual Harassment

Title VII of the federal Civil Rights Act is designed to protect American employees against discrimination and sexual harassment in the workplace. It gives workers the ability to file complaints with the Equal Employment Opportunity Commission (EEOC) or in federal court when inappropriate sexual advances affect a person’s employment.

Legally speaking, sexual harassment takes two forms:

• Quid pro quo situations where an employer makes employment decisions based on an employee’s willingness to engage in sexual conduct
• Hostile work environment claims where an employee’s coworkers or supervisors make repeated sexual statements or advances that are so severe that a reasonable person would find them inappropriate

In some cases, sexual harassment can also lead to retaliation claims, when an employer decides to remove the source of sexual harassment complaints, instead of the person committing the inappropriate behavior.

In either case, Title VII entitles the employee to a variety of financial and practical remedies, depending on the claimant’s circumstances and desired outcome:

• Reinstatement into the same or similar position
• Transfer to a different unit or shift
• Removal or transfer of the offending employee or supervisor
• Payment for lost wages, both past and future
• Reimbursement for the costs of finding replacement employment
• Punitive damages in some cases

Is an Employer Responsible for Sexual Harassment by Its Employees?

Sexual harassment is often caused by a desire to exert power and control over another person. In a traditional case, this is usually done by a boss, supervisor, or manager against an subordinate. In these cases, Title VII provides a clear path to recovery. When the harasser has the ability to significantly change the employee’s employment status, the United States Supreme Court has said the employer can be held directly responsible if those decisions are motivated by a person’s sex or sexuality.

But what about when the harasser is just a co-worker? A 2013 Supreme Court decision, Vance vs. Ball State University, 133 S.Ct. 2434, says that an employer will not automatically be responsible for a coworker’s independent intentional act. An employer is generally liable for actions done as part of the job, but discrimination and harassment aren’t part of anyone’s job description. According to the Court, an employee trying to hold an employer responsible for sexual harassment by its employees will have to do more than show that the behavior was offensive and happened at work.

Instead, if the sexual harassment didn’t involve a negative employment action, like hiring, firing, shift assignments, promotions, or pay raises, the employee must show that the employer was negligent in response to complaints. In other words, the company must have failed to prevent harassment it knew (or should have known) was happening on its dime.

For example, in September 2017, the EEOC sued coffee manufacturer Massimo Zanetti for sexual harassment and retaliation after the company allegedly fired an employee rather than respond to her complaints. LaToya Young was employed at the company’s Suffolk, Virginia roasting facility. After only two weeks of employment, a male co-worker began harassing her, asking for sexual favors, and making crude comments and gestures. The EEOC says Young filed three complaints about the behavior, but the harassment continued. Soon after her third complaint, Young was fired for alleged performance issues. The EEOC sued saying this was retaliation for Young’s sexual harassment complaints, which Massimo Zanetti had negligently failed to address.

What an Employee Should Do When Faced By Sexual Harassment by Co-Workers

The added step in proving an employer responsible for sexual harassment by its employees puts the pressure on the harassed employee. If you are facing harassment by coworkers on the job, you will need to take some proactive steps to protect your claim.

1. Say Something About the Harassment

Your employer needs to be on notice that sexual harassment is happening. So say something. Tell your supervisor, or your HR department what is happening and give them a chance to respond.

2. Write a a Formal Complaint

The larger your company, the more likely they are to have a formal discrimination policy with reporting procedures. Follow it. Make a formal written complaint and keep a copy for yourself.

3. Document the Employer’s Response

Start gathering documentation to support your sexual harassment claim and your employer’s investigation, or lack thereof. Follow up as often as it takes, in writing or via email, and keep track of every response you receive.

4. Track Continued Sexual Harassment

Along with your formal written complaint and the employer’s response, start tracking any continued sexual harassment happens: who, what, when, where, and who witnessed it. You will need this sexual harassment log to show your employer did not take reasonable steps to resolve the hostile work environment.

5. Get a Sexual Harassment Attorney to Help

Proving an employer responsible for sexual harassment of its employees isn’t easy. Don’t feel like you need to do it alone. At Eisenberg & Baum, LLP, we have sexual harassment attorneys ready to help you fight back against sexual harassment at work. We can help you stand up to your employer and demand that they protect you from sexual harassment by your coworkers. Whether all it takes is informal negotiations with your company’s attorney, or formal litigation in federal court, we can help you stand up for your rights. Contact us today to schedule a free consultation.