Who qualifies as a "supervisor" in the context of liability for sexual harassment?

August 31, 2007

The scope of an employer's liability is greatest when a supervisor commits harassment.
An employer is strictly liable for harassment by a supervisor that involves tangible negative employment action against the employee victim. This means that a company will be automatically liable for harassment by a supervisor that results in the firing, demotion, reassignment or other penalization of an employee. This is the rule whether the employer knew or should have known of the harassment, or took reasonable or even extraordinary care to prevent it.

In the absence of an affirmative defense, the same strict liability will attach to supervisory behavior that does not involve tangible negative employment action, but that does create a hostile work environment.

Because employees who occupy managerial or supervisory positions have heightened responsibilities based upon their special power and agency within the company, they must be given more extensive and thorough training than nonsupervisory employees.
It should be noted that an employee might be a "supervisor" within the meaning of the law, although not considered a supervisor for internal organizational purposes.

The following test is designed to determine whether an employee should be considered a "supervisor" for purposes of potential legal liability for harassment. A "yes" answer by an employee to any of these questions means that the employee should be considered a "supervisor."

• Do any other employees report directly to you?
• Do you have the authority to hire or fire any employee, or do you have input to management regarding the same?
• Do you have the authority to promote or demote any employees, or do you have input to management regarding the same?
• Do you have the authority to change any employee's work assignment, or do you have input to management regarding the same?
• Do you have the authority to determine any employee's wages or fringe benefits, or do you have input to management regarding the same?
• Do you have the authority to change any other significant condition of any employee's livelihood, or do you have input to management regarding the same?
• Do you have the authority to direct, even temporarily, any other employee's daily work activities?

This information is adapted from Ceridian's HR Compliance Reference System. Contact your Ceridian representative for more information about Ceridian's compliance solutions.