It’s a Super-visor?

By Stephan P. Hyun, Esq.

It is well understood that supervisors and managers have strong influences on a given company and its employees.  Their authority can appear to reign supreme, and accordingly, the law imposes certain liabilities that acknowledge this disparity in power.

Let us imagine for a moment that there is an employee working as a customer service representative at a distribution center for a company.  During this employee’s employment with the company, she begins to experience sporadic panic attacks.  In fact, her panic attacks and anxiety become serious enough where she has to take prescribed medication, causing her body to emit an unpleasant odor throughout the day.  In reaction, her supervisor repeatedly reprimands her, makes demeaning comments publicly to other co-workers about her, makes faces at her, and does not include her at various office parties/events.  Similarly, other employees make fun of the employee and make negative comments towards her.

Would the supervisor be liable for harassment?  Would the employees also be liable for harassment?  How about the employer company?

California’s Fair Employment and Housing Act, also referred to as California Government Code Sections 12900 through 12996, as well as some California cases decided fairly recently, set forth some guidance regarding these questions.

According to California Government Code Section 12940(j)(3), any employee, including a supervisor or manager, is personally liable for acts of harassment.  So assuming there is harassment involved, regardless of the level of employee, that individual is personally liable.

Determining whether an employer would be held liable becomes a trickier proposition.  One of the first steps is to determine what level of employee is conducting the harassment.  Under California Government Code Section 12940(j)(1), if it is a supervisor that is harassing his or her employees, the employer is strictly liable.  However, one caveat to this strict liability that the Court in Myers v. Trendwest Resorts Inc. (2007) 148 Cal.App.4th 1403 makes clear is that the supervisor must be acting in the course and scope of his or her employment when the harassment or acts of harassment occurred.  On the other hand, if it is a non-supervisor that is doing the harassing, the employer is only responsible if it can be shown that the employer knew or should have known about the harassment, yet failed to take immediate and appropriate action to remediate the issue.

The Court in Roby v. McKesson Corp. (2005) 47 Cal.4th 686 explains this distinction of the law in the treatment between a supervisor and a regular employee.  The Roby Court states that the actions of a high-level manager of an organization may be more injurious to the potential victim (i.e. regular employees) because of the prestige and authority that a manager enjoys within that organization.  The hypothetical mentioned above about the employee recurrently overcome by panic attacks, is in fact, the Roby case, in which the Court found that the supervisor’s acts of making demeaning comments publicly to other co-workers about the employee, making faces at her, and failing to include her at various office parties/events, were considered harassment.  Even though those actions may only have been expressions of personal hostility between the supervisor and the employee, and thereby arguably unrelated to the supervisor’s managerial role, the very fact that those actions or expressions were being conducted by a supervisor “clothed the acts with an official pattern of bias.”  Therefore, just as the supervisor has the power to manage other employees, the supervisor, through his or her actions, has the power to attach liability onto the employer.

Employers may also be potentially liable for punitive damages.  Punitive damages are damages aimed to punish the employer defendant, rather than simply compensate the employee plaintiff.  A supervisor’s harassment does not automatically mean the employer will be held liable for punitive damages.  In order for the employer to be held liable for punitive damages, there must be evidence that a supervisor’s harassment was a product of the company culture, something more pervasive throughout the company than one supervisor performing harassing acts, even if that one supervisor’s conduct was frequent.

Armed with knowledge of the law, an employer can take proper precautions to instruct its supervisors accordingly, and warn them that their actions and words have wide range ramifications on everyone.  Supervisors have great power indeed.