Is my company liable if my coworkers are harassing me?

Your company may be liable for coworkers who are harassing you if your company was negligent in not stopping it. Your company is negligent if it knew or should have known that the harassment was happening, but failed to take immediate and appropriate action to end it. You can recover any wages that you lost and compensation for emotional distress.

Employer liability for workplace harassment

Under state and federal law, there are two situations where your employer can be held liable for workplace harassment:

1. the harassment was done by your supervisor, and
2. your employer knew or should have known about the harassment, but failed to take action.[i]

Under the main federal employment discrimination law, Title VII of the Civil Rights Act of 1964, a “supervisor” is someone who can take a tangible employment action against you, like:

• hiring,
• firing, or
• demoting. ^[ii]

If your coworkers are harassing you rather than a supervisor, in order for your employer to be liable:

1. the company must have anti-harassment policies in place,
2. there must be a mechanism for workers to report violations,
3. you properly went through that reporting process, and
4. the company did not take prompt corrective action.^[iii]

Some state laws impose liability on the company more often.

For example, in California, the main anti-discrimination law is the Fair Employment and Housing Act (FEHA). Under FEHA, a “supervisor” is anyone who:

• has the power to do any of the following actions to other employees:
  • hire,
  • transfer,
  • suspend,
  • lay off,
  • recall,
  • promote,
  • discharge,
  • assign,
  • reward, or
  • discipline;
• has the responsibility to direct other employees or adjust their grievances, or
• can recommend any of the above actions.[iv]

This is much broader than federal law.

Additionally, employers in California can be liable even if the worker did not complain about it. As long as other factors indicate that the company should have known about the harassment, it can be liable.

However, the employment lawyers at our law firm have found that you are more likely to win a harassment case if you report the harassment internally in your company. In many cases, your company will take action to stop the harassment and resolve the issue. If they fail to do so, your report of the harassment proves they were aware of it happening. If they punish you for reporting, you can file a retaliation claim.

What you can recover

If you file a harassment claim, you can recover financial compensation for your:

• emotional distress, and
• attorneys’ fees.

If you were discharged, demoted, or suffered any other adverse employment decision from the harassment, you can also recover:

• back pay to cover the wages that you have already lost,
• front pay to cover the wages that you would have earned, and
• lost work benefits.

You may also recover punitive damages to punish the company or your harasser for particularly bad behavior, though this is rare.

This financial compensation can come from your company or from the person harassing you. However, our lawyers have found that holding harassers personally liable often does not recover very much. Insurance rarely covers their behavior so they would pay a verdict out of their own pocket. This is typically very little.

You can also get injunctive relief through a court order that demands your company take action to stop the harassment. This can involve mandating employee harassment training or an appropriate corrective action.

Types of harassment by co-workers

There are 2 types of workplace harassment:

1. hostile work environment, and
2. quid pro quo.

Because quid pro quo harassment requires your harasser to have authority over you, our employment attorneys have found that it is extremely rare for co-workers to be able to do it. Nearly all workplace harassment cases involving co-workers pertain to hostile working environments.

According to the U.S. Equal Employment Opportunity Commission (EEOC):

“Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”[v]

Harassment is unwelcome behavior that targets a protected trait, such as your:

• sex,
• gender,
• sexual orientation,
• gender expression,
• gender identity,
• race,
• religion,
• national origin,
• age,
• disability,
• genetic information, and
• others.

The behavior often takes the following forms or harassing conduct:

• slurs,
• unwanted sexual advances,
• sexual harassment or requests for sexual favors,
• offensive jokes, and
• physical contact.

How to invoke your workplace rights

If your co-workers are harassing you at work, you should take the following actions:

1. inform your company’s Human Resources department (HR) or, if you work at a small business, your supervisor or the company owner,
2. if that does not work, file a harassment complaint at the EEOC or your state’s equivalent of that federal agency, and
3. if that does not resolve things, get a “right to sue” letter and file a civil lawsuit for harassment in state or federal court against your harasser and your employer.

Internally reporting the harassment is an important first step. Even if you do not think it will get you anywhere, it can strengthen your case. If you follow your company’s procedures for internally reporting harassment, and then your company does nothing, they cannot claim that they did not know about the harassing behavior. Following company policy can keep them from using this strong legal defense.

State and federal employment laws generally require you to exhaust your administrative remedies before you can go to court. This means filing your harassment claim with the federal EEOC or your state’s equivalent, like the California Civil Rights Department (CRD). This is often when it helps to have legal representation. Investigators will look into your complaint. They will also try to get you and your employer to resolve the dispute through mediation or arbitration.

Filing this complaint quickly is extremely important. The EEOC’s statute of limitations is usually 180 days from the date of the last incident of harassment.[vi] In some states, it may be longer. Under California law, you usually have 3 years.[vii]

If no resolution is made through this process, the next step is to file your lawsuit in court.

Harassment by others

Co-workers and supervisors are not the only ones who can commit unlawful harassment in the workplace. This form of harassment can also be committed by:

• non-employees, like members of the public,
• clients,
• customers,
• vendors, and
• independent contractors.

However, holding your company liable for these types of harassment is often more difficult.

Legal Citations:

[i] Vance v. Ball State University, 133 S.Ct. 2434 (2013).

[ii] Same.

[iii] Same.

[iv] California Government Code 12926(t) GOV.

[v] U.S. Equal Employment Opportunity Commission (EEOC), “Harassment.”

[vi] 42 USC 2000e-5.

[vii] California Government Code 12960 GOV.