Workplace Harassment by Non-Supervisors, Coworkers & Non-Employees

Under the California Fair Employment and Housing Act, employees sometimes may sue their employers for workplace harassment committed by a non-supervisor. The FEHA provides employees with the right to be free from any sexual harassment or non-sexual harassment, regardless of whether it is committed by:

• a supervisor,
• a non-supervisor colleague, or even
• certain non-employees (such as clients or independent contractors).¹

That said, the employer’s liability in a harassment lawsuit depends on:

• who is doing the harassing,
• what kind of harassment is taking place, and
• the work relationship between the harasser and the victim.

As any knowledgeable California employment attorney can tell you, workplace harassment in California is not just about supervisors hitting on or denigrating their subordinates. Anyone in the workplace might be harassed by anyone else in the vicinity, including non-employees.

Below, our California labor and employment lawyers answer the following frequently asked questions about supervisor & non-supervisor workplace harassment under the Fair Employment and Housing Act (FEHA):

• 1. What is the Law Regarding Workplace Harassment by a Supervisor?
  • 1.1. What is the definition of a “supervisor” under California harassment law?
• 2. Can Employees Sue for Workplace Harassment by Non-Supervisors in California?
• 3. Can Employees Sue under California Employment Law for Harassment by a Customer or Client?

If, after reading this article, you have further questions, we invite you to contact us at Shouse Law Group.

1. What is the Law Regarding Workplace Harassment by a Supervisor?

Harassment by a supervisor is what most people think of first when they hear about workplace harassment. Supervisor harassment under the FEHA can consist of either:

1. “Quid pro quo” sexual harassment, in which a supervisor demands sexual favors or behavior in exchange for employee benefits; or
2. “Hostile work environment” harassment, which can be either sexual or non-sexual (e.g., based on race, religion, age, sexual orientation, etc.), in which a supervisor’s severe or pervasive abusive behavior leads to an altered work environment for a harassed employee.²

The key point to know about either type of harassment by a supervisor in California is this: if the harassment is perpetrated

• by the victim’s supervisor, or
• by someone in successively higher authority (for example, by the supervisor’s supervisor), then the employer is strictly liable for the harassment.

This means that, if an employee brings a harassment lawsuit, an employer can be liable for damages for the supervisor’s harassment regardless of whether it acted reasonably to prevent such harassment from occurring.³

Example: Rob is the principal of a public school. Kelly is a teacher at that same school. Rob tells Kelly that he will arrange for her to teach the “gifted” class at the school–known for being an easier and more enjoyable teaching assignment than most–if she will have sex with him.

The public school district that employs Rob and Kelly has gone out of its way to train employers and employees on how to avoid harassment. When Kelly tells the superintendent about Rob’s proposal, Rob is immediately put on leave from his position.

Still, because Rob is a supervisor, the district will be liable to Kelly for damages in a lawsuit if she decides to sue over Rob’s quid pro quo sexual harassment.

Even so, a California employer can still limit (but not entirely avoid) damages in a harassment lawsuit by showing:

• The employer took reasonable measures and procedures to prevent and correct harassment;
• The harassment victim unreasonably failed to take advantage of these measures; and
• Reasonable use of the employer’s procedures would have prevented some of the harm.⁴

1.1. What is the definition of a “supervisor” under California harassment law?

In California, the definition of supervisor under the FEHA’s harassment provisions is particularly broad. It includes any person who, using independent judgment:

• has authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees;
• has the responsibility to direct other employees,
• has the responsibility to adjust other employees’ grievances; or
• can effectively recommend such actions.⁵

Under this definition, it is likely that “lead workers” or “forepersons” would count as supervisors, even if they can only assign tasks and are not responsible or accountable for the employees’ work product.⁶

2. Can Employees Sue for Workplace Harassment by Non-Supervisors?

California employees may still sue their employers under the Fair Employment and Housing Act if they experience harassment at the hands of a fellow employee who is not a supervisor. (This will mean hostile work environment harassment rather than quid pro quo sexual harassment.)

However, if the alleged harasser is not a supervisor, the employer is only liable in a workplace harassment suit if the employer was negligent. This means that both of the following must be true:

• The employer knew or should have known that harassment was occurring; and
• The employer failed to take immediate and appropriate corrective action.⁷

This type of case will revolve around

1. whether the employer took measures to prevent harassment in the workplace and
2. how the employer responded to complaints or signs that harassment was occurring.

To the extent that the harassment may have been apparent, especially to anyone in authority, the employer will be deemed “on notice” about the harassing behavior. If so, the employer must take proactive steps to combat the harassment—even if the harassed employee does not complain—or the employer will probably be found negligent.

Example: A small video game development company hires Manesh as a game designer. Manesh is known in the industry as a genius at his job. But his last employer tells the new company that Manesh has a track record of “un-PC behavior.”

Sure enough, once Manesh starts work at the game development company, he begins making frequent sexually explicit jokes around both female and male colleagues. He also casually uses a lot of ethnic slurs, including some that refer to the ethnicities of his coworkers.

None of Manesh’s coworkers has the courage to complain to management. But managers do overhear his offensive comments frequently.

If a coworker of Manesh eventually sues the game development company on a claim of “hostile work environment” harassment by Manesh, the company may be found negligent because there is evidence that it was on notice about Manesh’s harassing behavior.

Also, the employer’s prior record in dealing with harassment complaints will become relevant in this kind of case. If the employee can show that the employer’s track record showed that a complaint of harassment was unlikely to accomplish anything, then a jury is more likely to determine that the employer was negligent.

3. Can Employees Sue for Harassment by a Customer or Client?

A problematic situation arises when an employee experiences harassment (sexual or otherwise) by a customer or client of the business, especially an important one.

Usually, the employer’s instinct is to please and placate the customer or client, in order to retain their business. But from the standpoint of California harassment law and the FEHA, it would be unwise to follow this instinct.

An employer is liable for third-party sexual harassment just as it would be for harassment by a coworker. That is, the employer is liable if its behavior regarding the harassment is negligent.

Negligence means that the employer knew or should have known of the harassment and failed to take appropriate corrective action (taking into account the employer’s degree of control over the client/customer/etc.).⁸

Example: Lily is a young lawyer at a business law firm. A partner at the firm asks Lily to take John, an important client, out to dinner.

At the dinner John drinks too much and ends up making aggressive sexual advances at Lily. She is forced to ask the waiter at the restaurant for help in fighting him off.

Lily is familiar with California employment and harassment law. She figures that she does not have a claim against her law firm for John’s harassing behavior, since there is no evidence that the firm behaved negligently. She does not tell the partners about the incident.

But a few months later Lily tells another female lawyer about her experience. This woman tells Lily that John has behaved that way toward other firm lawyers in the past and the partners knew about it. She also says that the partner probably asked Lily to go out with John deliberately, because he could tell she was “his type.”

This information suggests that Lily might be able to sue her employer for harassment by a client–since it indicates that the firm know about the harassment and did not do anything to prevent it.

All employers who are aware of harassment of their employees by clients, customers or independent contractors have an obligation to take steps to alleviate the hostile work environment this creates. This is true even in situations where a certain amount of sexual harassment would almost seem inevitable (for example, with a female employee working at a men’s prison).⁹

Call us for help…

For questions about workplace harassment by supervisors and non-supervisors under California’s Fair Employment and Housing Act, or to discuss your case confidentially with one of our skilled California sexual harassment attorneys, do not hesitate to contact us at Shouse Law Group.

We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

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