In an important new ruling, the California Supreme Court has held that employees who are harassed by co-workers cannot seek damages from the employees who actually did the harassing. We’ll look at the new ruling and provide an overview of just who can be held liable in this rapidly changing area of the law.
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Victim Sues Co-Worker For Damages
Maryann Carrisales worked in the warehouse at the California Institute for Men in Chino. She accused a fellow prison employee, Dave Selkirk, of touching her inappropriately over the course of several months. She also claimed that the prison failed to stop the harassment. Carrisales ended up suing the state Department of Corrections and Selkirk for violating California’s anti-harassment law.
But Selkirk asked the court to throw out Carrisales’ case against him, arguing that California’s Fair Employment and Housing Act does not permit individual lawsuits against co-workers – and the state Supreme Court agreed.Carrisales’ case against the prison is still pending.
Law Varies
Despite the court’s ruling, the question of who can be personally sued – and under what circumstances – remains complex. The answer in each case will depend on the particular law that applies and the status of the accused employee – co-worker or supervisor:
- Co-worker liability. As a result of this case, employees can’t be sued for harassment by their co-workers, except in limited cases involving assault or intentional infliction of emotional distress.
- Supervisor liability. Supervisors can still be forced to pay damages out of their own pockets for harassment and retaliation claims brought under state law, but not for workplace discrimination claims (see CEA August 1998). Federal law tends to favor protecting managers from personal suits.
- Employer liability. As an employer, you can be held responsible for harassment committed by a co-worker only if you were aware of the problem and failed to take action to stop it. However, when it comes to harassment by a supervisor, you’re automatically responsible under state law – whether you knew about it or not.
Federal law gives you a special defense against supervisor harassment claims. It allows you to avoid automatic liability when:
- the employee did not suffer a job detriment;
- you exercised reasonable care to prevent the harassment (e.g., by distributing a strongly worded sexual harassment policy); and
- the victim failed to report the harassment through an established complaint procedure.