Workplace harassment lawsuits are increasing.
Employers are being held accountable like never before.
Total harassment charges filed with the EEOC rose to 31,354 in FY 2023. That’s an increase of 47% in three years. Recoveries from those claims totaled $202.2 million during that year.
So what does this mean for employers?
It means that understanding employer liability isn’t optional. It’s table stakes.
Sexual harassment, racial discrimination, hostile work environment…it doesn’t matter what type of workplace misconduct lawsuit you’re facing. Employers who don’t respond appropriately can face serious legal and financial repercussions. If you’re dealing with this right now, speaking to a harassment lawyer in San Diego who knows employer liability laws back-to-front is the best move you can make.
Here’s everything employers and employees need to know.
Here’s What You’ll Learn:
- What Is Employer Liability in Workplace Harassment?
- The Two Harassment Types That Put Employers At Risk
- When Employers Are – And Aren’t – Legally Responsible
- How Managers Can Limit Legal Exposure
- Why Ignoring Harassment Complaints Is Dangerous
What Is Employer Liability in Workplace Harassment?
Employer liability determines who is legally responsible when harassment occurs in the workplace.
More importantly…
Employer liability doesn’t just look at what the employer did do. It also applies when employers fail to take action. Under Title VII of the Civil Rights Act, employers can be held liable for harassment by supervisors, co-workers – and even third parties like vendors or customers.
To prove liability, courts will look at whether the employer knew (or should have known) about the harassment. They’ll also look at whether the employer acted reasonably in attempting to stop it.
The Two Harassment Types That Put Employers At Risk
Employers can get legally dinged for all types of harassment. But harassment lawsuits fall into two main categories that matter from a liability perspective:
1: Quid Pro Quo Harassment
In quid pro quo harassment, a supervisor conditions employment benefits—or worse—on an employee submitting to sexual advances. (Think “Sleep with me or you’ll get fired.”)
Employer liability is automatic in these cases. There’s very little defense available.
2: Hostile Work Environment
If your employees are harassing each other and it’s impacting work performance, that’s a hostile work environment.
To be illegal, though, it must involve harassment based on a “protected” class (race, sex, religion, disability, age) that’s severe or pervasive enough to create a work environment that someone would find hostile or abusive.
Note the difference:
- Quid pro quo harassment = automatic employer liability
- Hostile work environment = employer liability depends on if they took reasonable precautions
The distinction between these two harassment types can mean everything in a workplace harassment lawsuit.
When Employers Are – And Aren’t – Legally Responsible
If you’re an employer or manager, you need to know these two harassment cases: Faragher v. City of Boca Raton and Burlington Industries v. Ellerth.
These two Supreme Court cases created what’s known as the Faragher-Ellerth defense. Employers can use this defense to avoid liability if they can prove two things:
- That they took reasonable steps to prevent harassment
AND
- The employee failed to take advantage of the employer’s complaint process.
This is huge.
It means that if you as an employer have a proper harassment policy in place AND communicate it to employees, you may have a viable defense against harassment claims.
As long as there’s no tangible employment action involved. If the harassment DOES lead to a poor performance review, firing, demotion, or pay cut… the defense won’t work. Full stop.
Steps Employers Must Take To Reduce Legal Exposure
Workplace harassment lawsuits don’t usually come because a company ENCOURAGED harassment.
They come because companies had no idea it was happening.
How are courts deciding this?
By determining if employers…
- Have a written anti-harassment policy EVERY EMPLOYEE has received
- Train employees on the policy annually
- Have an employee complaint process that’s easily accessible
- Take EVERY complaint seriously
- Document ALL findings and follow ups
52% of employees say they’ve experienced or witnessed inappropriate behavior in the workplace. Only a fraction of these employees actually report the harassment. Why? Many fear retaliation. Others don’t trust the system to work in their favor.
Employers have a duty to gain their trust. When they fail to do so, they open themselves up to liability.
What Happens When Harassment Gets Ignored?
Ignoring a harassment complaint is basically giving that employee a free ticket to court.
Employers who receive a harassment complaint and do nothing about it—or worse, retaliate against the employee for filing a complaint—have little defense in court.
Why? Because retaliation makes up 52% of all charges filed with the EEOC, making it the most frequent type of workplace discrimination complaint.
Needless to say, employers can’t afford harassment lawsuits. Workplace harassment costs employers $2.6 billion dollars per year in lost productivity alone. Legal fees add to the burden on top of that.
On top of that, judges look at whether or not the employer “allowed” harassment to happen. That includes:
- Ignoring complaints against managers who are “high performers”
- Not properly documenting prior incidents
- Permitting repeat offenders to remain managers
Attorneys look for these exact patterns when building a harassment case.
Employer Liability Final Thoughts
Here’s the bottom line.
Employers, what systems did you have in place to prevent harassment? How quickly did you respond to complaints?
These are the two most important questions a judge will consider.
If you handle employee complaints properly from Day 1, you dramatically decrease your chances of landing in court.
And employees who feel their complaints have been ignored or mishandled? They have options.
Remember…
- Quid pro quo harassment = automatic employer liability
- Hostile work environment claims = employers can raise the Faragher Ellerth defense if they have good policies
Employers can limit their liability if they have proper complaint systems in place and consistently follow up.
When a complaint comes in, act immediately. The longer you wait, the harder it is to defend yourself in court.
Keep good records of every complaint and follow up. This isn’t a “set it and forget it” situation.
Employers should build a rock-solid harassment prevention system long before a problem ever occurs.