Intimidating witnesses court
As the Supreme Court recognized in As long as the individual’s recommendation is given substantial weight by the final decision maker(s), that individual meets the definition of supervisor.An individual who is authorized to direct another employee’s day-to-day work activities qualifies as his or her supervisor even if that individual does not have the authority to undertake or recommend tangible job decisions.Such a result is appropriate if the employee reasonably believed that the harasser had such power.The employee might have such a belief because, for example, the chains of command are unclear.Furthermore, the anti-discrimination statutes are not a “general civility code.” Existing Commission guidance on the standards for determining whether challenged conduct rises to the level of unlawful harassment remains in effect.This document supersedes previous Commission guidance on the issue of vicarious liability for harassment by supervisors.Such an individual’s ability to commit harassment is enhanced by his or her authority to increase the employee’s workload or assign undesirable tasks, and hence it is appropriate to consider such a person a “supervisor” when determining whether the employer is vicariously liable.In , one of the harassers was authorized to hire, supervise, counsel, and discipline lifeguards, while the other harasser was responsible for making the lifeguards’ daily work assignments and supervising their work and fitness training.
Accordingly, the employer would be subject to vicarious liability if that individual commits unlawful harassment of a subordinate while serving as his or her supervisor.
The Supreme Court, in The new affirmative defense gives credit for such preventive efforts by an employer, thereby “implement[ing] clear statutory policy and complement[ing] the Government’s Title VII enforcement efforts.” The question of liability arises only after there is a determination that unlawful harassment occurred.
Harassment does not violate federal law unless it involves discriminatory treatment on the basis of race, color, sex, religion, national origin, age of 40 or older, disability, or protected activity under the anti-discrimination statutes.
However, if it does not, the employer may be able to avoid liability or limit damages by establishing an affirmative defense that includes two necessary elements: decisions addressed sexual harassment, the Court’s analysis drew upon standards set forth in cases involving harassment on other protected bases.
Moreover, the Commission has always taken the position that the same basic standards apply to all types of prohibited harassment.