Is an employer liable for an employee’s claim of sexual harassment where the harassment is committed by a co-worker? Maybe yes, or maybe no. The answer to this question depends upon the particular facts and circumstances.
As a general matter, it can be said that an employer typically is not liable for the actions of one worker directed at another worker. There are exceptions to the general rule, however.
If the harasser is a supervisory or management level employee, the employer could be held responsible for the harassment.
Another instance where the employer could be held responsible is where management is made aware of a problem by a harassed employee and does nothing to remedy it. The employer does have a responsibility to investigate and take remedial steps to correct unlawful harassment by a co-worker if the employer becomes aware of it.
Most employers get into trouble by failing to maintain a stated policy against harassment, by failing to enforce the policy or by failing to respond when credible allegations are made. The key to a proper response is a prompt and fair investigation of the complaining employee’s allegation. The employer should then act on the results of the investigation by taking appropriate steps to prevent a recurrence of a violation. These steps will help to insulate the employer from a claim by the harassed co-worker.
Allegations of harassment, whether they are sexual, racial or based upon some other protected classification always present delicate situations. Employers must insure that they respond promptly and fairly to protect the rights of all parties involved, including not just the accuser, but also the accused. The worst thing an employer can do is to fail to act.
Call us if we can assist in this area.
— Kevin Palmer