Under California law, you can be automatically liable for harassment committed by your managers and supervisors even if you had no notice of the problem and did nothing wrong. But just who qualifies as a supervisor has long been a troubling and important question because your chances of being held responsible increase as more employees fall within the definition. Now, a little-noticed provision buried in a huge piece of civil rights legislation recently signed by Governor Davis significantly expands the number of employees who can be considered supervisors.
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When You’re Automatically Liable
California law holds employers “strictly,” or automatically, liable for any kind of supervisor harassment, whether you knew about it or not. Employers have an absolute duty to keep the workplace safe, and making you responsible for a supervisor’s actions is intended to provide an added incentive to train and monitor managers. You¹re also liable for harassment by supervisors under federal law, although the rules are slightly different and allow you to avoid responsibility in some cases if you took steps to prevent misconduct.
Broad Definition Of “Supervisor”
A.B. 1670, which goes into effect on January 1, defines the term “supervisor” for the first time. Under the law, a supervisor is someone who has authority to:
- Hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or the responsibility to direct them; or
- Effectively recommend such actions if the recommendation is based on independent judgment rather than being simply a routine or clerical action.
The new definition includes lower-level managers who lack final authority to make personnel decisions, thereby drastically expanding the universe of supervisors under California law. For example, anyone with even limited authority, such as the coordinator of a small work team who makes specific job assignments, may now qualify as a supervisor, subjecting you to liability for their actions.
Immediate Steps To Take
To minimize your risks, provide periodic refresher training to both high- and low-level managers and supervisors about the serious consequences of harassment, and inform them that they can be personally sued for violating the law. Require supervisors to report all harassment complaints to a designated person who is trained to handle them, regardless of whether the supervisor believes the charge has merit. And be sure your written anti-harassment policy provides employees with a way to bypass their immediate supervisor to make a harassment complaint.