Questions & Answers
The U.S. Equal Employment Opportunity
for Small Employers on
Employer Liability for Harassment by Supervisors
Questions & Answers for Small Employers on Employer
Liability for Harassment by Supervisors
Title VII of
the Civil Rights Act (Title VII) prohibits harassment of an employee based on race,
color, sex, religion, or national origin. The Age
Discrimination in Employment Act (ADEA) prohibits harassment of employees who are 40
or older on the basis of age, and the Americans
with Disabilities Act (ADA) prohibits harassment based on disability. All of the
anti-discrimination statutes enforced by the EEOC prohibit retaliation for complaining of
discrimination or participating in complaint proceedings.
The Supreme Court issued two major decisions in June of
1998 that explained when employers will be held legally responsible for unlawful
harassment by supervisors. The EEOC's Guidance
on Employer Liability for Harassment by Supervisors examines those decisions and
provides practical guidance regarding the duty of employers to prevent and correct
harassment and the duty of employees to avoid harassment by using their employers'
- Harassment violates federal law if it involves
discriminatory treatment based on race, color, sex (with or without sexual conduct),
religion, national origin, age, disability, or because the employee opposed job
discrimination or participated in an investigation or complaint proceeding under the EEO
statutes. Federal law does not prohibit simple teasing, offhand comments, or isolated
incidents that are not extremely serious. The conduct must be sufficiently frequent or
severe to create a hostile work environment or result in a "tangible employment
action," such as hiring, firing, promotion, or demotion.
- No, it applies to all types of unlawful harassment.
3. When is an employer legally responsible for harassment
by a supervisor?
- An employer is always responsible for harassment by a
supervisor that culminated in a tangible employment action. If the harassment did not lead
to a tangible employment action, the employer is liable unless it proves that: 1) it
exercised reasonable care to prevent and promptly correct any harassment; and 2) the
employee unreasonably failed to complain to management or to avoid harm otherwise.
4. Who qualifies as a "supervisor" for purposes of
- An individual qualifies as an employee's
"supervisor" if the individual has the authority to recommend tangible
employment decisions affecting the employee or if the individual has the authority to
direct the employee's daily work activities.
- A "tangible employment action" means a significant
change in employment status. Examples include hiring, firing, promotion, demotion,
undesirable reassignment, a decision causing a significant change in benefits,
compensation decisions, and work assignment.
6. How might harassment culminate in a tangible employment
- This might occur if a supervisor fires or demotes a
subordinate because she rejects his sexual demands, or promotes her because she submits to
his sexual demands.
- Employers should establish, distribute to all employees, and
enforce a policy prohibiting harassment and setting out a procedure for making complaints.
In most cases, the policy and procedure should be in writing.
- Small businesses may be able to discharge their
responsibility to prevent and correct harassment through less formal means. For example,
if a business is sufficiently small that the owner maintains regular contact with all
employees, the owner can tell the employees at staff meetings that harassment is
prohibited, that employees should report such conduct promptly, and that a complaint can
be brought "straight to the top." If the business conducts a prompt, thorough,
and impartial investigation of any complaint that arises and undertakes swift and
appropriate corrective action, it will have fulfilled its responsibility to
"effectively prevent and correct harassment."
8. What should an anti-harassment policy say?
- An employer's anti-harassment policy should make clear that
the employer will not tolerate harassment based on race, sex, religion, national origin,
age, or disability, or harassment based on opposition to discrimination on participation
in complaint proceedings. The policy should also state that the employer will not tolerate
retaliation against anyone who complains of harassment or who participates in an
- The employer should encourage employees to report harassment
to management before it becomes severe or pervasive.
- The employer should designate more than one individual to
take complaints, and should ensure that these individuals are in accessible locations. The
employer also should instruct all of its supervisors to report complaints of harassment to
- The employer should assure employees that it will protect
the confidentiality of harassment complaints to the extent possible.
10. Is a complaint procedure adequate if employees are
instructed to report harassment to their immediate supervisors?
- No, because the supervisor may be the one committing
harassment or may not be impartial. It is advisable for an employer to designate at least
one official outside an employee's chain of command to take complaints, to assure that the
complaint will be handled impartially.
11. How should an employer investigate a harassment
- An employer should conduct a prompt, thorough, and impartial
investigation. The alleged harasser should not have any direct or indirect control over
- The investigator should interview the employee who
complained of harassment, the alleged harasser, and others who could reasonably be
expected to have relevant information. The Guidance provides examples of specific
questions that may be appropriate to ask.
- Before completing the investigation, the employer should
take steps to make sure that harassment does not continue. If the parties have to be
separated, then the separation should not burden the employee who has complained of
harassment. An involuntary transfer of the complainant could constitute unlawful
retaliation. Other examples of interim measures are making scheduling changes to avoid
contact between the parties or placing the alleged harasser on non-disciplinary leave with
pay pending the conclusion of the investigation.
- If an employer determines that harassment occurred, it
should take immediate measures to stop the harassment and ensure that it does not recur.
Disciplinary measures should be proportional to the seriousness of the offense. The
employer also should correct the effects of the harassment by, for example, restoring
leave taken because of the harassment and expunging negative evaluations in the employee's
personnel file that arose from the harassment.
13. Are there other measures that employers
should take to prevent and correct harassment?
- An employer should correct harassment that is clearly
unwelcome regardless of whether a complaint is filed. For example, if there is graffiti in
the workplace containing racial or sexual epithets, management should not wait for a
complaint before erasing it.
- An employer should ensure that its supervisors and managers
understand their responsibilities under the organization's anti-harassment policy and
- An employer should screen applicants for supervisory jobs to
see if they have a history of engaging in harassment. If so, and the employer hires such a
candidate, it must take steps to monitor actions taken by that individual in order to
- An employer should keep records of harassment complaints and
check those records when a complaint of harassment is made to reveal any patterns of
harassment by the same individuals.
14. Does an employee who is harassed by his or her
supervisor have any responsibilities?
- Yes. The employee must take reasonable steps to avoid harm
from the harassment. Usually, the employee will exercise this responsibility by using the
employer's complaint procedure.
15. Is an employer legally responsible for its
supervisor's harassment if the employee
failed to use the employer's complaint procedure
- No, unless the harassment resulted in a tangible employment
action or unless it was reasonable for the employee not to complain to management. An
employee's failure to complain would be reasonable, for example, if he or she had a
legitimate fear of retaliation. The employer must prove that the employee acted
16. If an employee complains to management about
harassment, should he or she wait for management to complete the investigation before filing a charge with EEOC?
- It may make sense to wait to see if management corrects the
harassment before filing a charge. However, if management does not act promptly to
investigate the complaint and undertake corrective action, then it may be appropriate to
file a charge. The deadline for filing an EEOC charge is either 180 or 300 days after the
last date of alleged harassment, depending on the state in which the allegation arises.
This deadline is not extended because of an employer's internal investigation of the
Further guidance on harassment can be found in the 1999 Guidance on Employer Liability for
Unlawful Harassment by Supervisors; the 1980 Guidelines on Sexual Harassment; the 1990 Policy Statement on Current Issues
in Sexual Harassment; the 1990
Policy Statement on Sexual Favoritism; and the 1994 Enforcement Guidance on Harris v.
Forklift Sys., Inc.. These can all be found on EEOC's web site (www.eeoc.gov).
They are also available by calling the EEOC's Publications Distribution Center
(800-669-3362 or TTY 800-800-3302), or by writing to EEOC's Office of Communications and
Legislative Affairs, 1801 L St., N.W., Washington, D.C. 20507.