The Supreme Court has indicated that an employer is liable under Title VII if there is harassment of an employee by a co-worker, but only if the employer did not control the conditions at work.
This changes if the co-worker is a supervisor, according to a recent Supreme Court decision.
Who is a supervisor? For purposes of Title VII, it is a person empowered by the employer to take a tangible employment action against the plaintiff employee.
In a case involving a supervisor, in order to hold an employer liable, a plaintiff employee would need to prove that the supervisor’s harassment amounted to a “tangible employment action,” i.e., a significant change such as hiring, firing, failing to promote, etc. In such a case, the employer would be strictly liable.
In other supervisor cases under Title VII (those in which there was no “tangible employment action”), the employer may be able to establish an affirmative defense to liability if (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff employee unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.
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