Workers in the United States are protected by numerous state and federal laws that make it illegal for employers to engage in various types of employment related discrimination. Contrary to what many people believe, not all acts of discrimination are prohibited.
For an act of discrimination to be legally actionable it must be based on a covered trait or characteristic, such as race, national origin, or disability, just to name a few. Harassment, in various forms, can also be illegal under state and/or federal law.
While it is clear that an employer can be held liable for certain types of harassment, can an employee be personally responsible for harassment?
The rather complicated answer to that question boils down to “it depends.”
First, it helps to understand what the law means by the word “harassment.” Federal law makes harassment unlawful where:
- Enduring the offensive conduct becomes a condition of continued employment OR
- The conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
A covered employer can certainly be held responsible for harassment in the workplace.
Moreover, an employer can be held liable for harassment by a supervisor if that harassment results in a negative employment action, such as termination or loss of wages.
An employer may also be held liable for acts of a non-supervisory employee or non-employee over whom the employer has control, including independent contractors or customers on the premises, if the employer “knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.”
Under certain circumstances, individual employees may also be held liable for harassment.
Human Resources professionals and supervisory personnel are frequently named in a discrimination lawsuit for several reasons, many of which are strategy related; however, they can ultimately be held individually liable in some cases.
Liability can be based on the fact that the employee directly engaged in acts of harassment or on the basis that the employee is an agent of the employer.
Individual liability often depends on the law under which the lawsuit is brought and/or the jurisdiction where the lawsuit is filed (state or federal). Many federal statutes, such as Title VII and the ADA prohibit discrimination by an “employer.”
Most courts, when required to define the word “employer” as used in these statutes, have done so in a way that precludes individual liability.
Conversely, the definition of “employer” in the FLSA and the FMLA both leave room for individual liability. Just to further complicate matters, if the lawsuit is filed in state court an entirely different definition of “employer” may apply, thereby opening the door to personal liability.
Finally, the victim of harassment could also file a lawsuit based in tort in lieu of, or in addition to, a lawsuit based on a federal or state statute.
Torts such as wrongful discharge, emotional distress, or defamation could all potentially apply if the victim was harassed in the workplace.
In a tort based lawsuit, there are no pre-determined limits to who can be held liable because the claim not based on a statute, but instead is based on common law.
As you can see, liability in a workplace harassment lawsuit is a complex and complicated issue.
If you believe you have been the victim of harassment in the workplace, contact the experienced Florida employment law attorneys at Celler Legal, P.A. by calling 954-716-8601 to schedule your appointment and discuss your legal options.