Top Sex Harassment Lawyer Answer: Is there a difference between sexual harassment from a co-worker and harassment from a supervisor? Who is considered a supervisor under the law?
Usually, for a business to be liable for the sexual harassment of a co-worker, the employer has to either have actual knowledge or constructive knowledge of the harassment to be liable. Actual knowledge means it has been reported to the employer or that the boss directly observed it; constructive knowledge means that the facts and circumstances are such that the employer should have known. At that point, the employer’s liability turns on how – if at all – the employer responds. A failure to respond appropriately, or even worse, retaliating against the complaining employee, often results in employer liability.
However, employers are generally held to a higher standard when the harasser is a supervisor. When the harassment comes from a supervisor, the employer does not need to be aware of the harassment to be liable. Thus, whether the harasser is a co-worker or a supervisor can make a big difference.
So that raises the question: who is considered a supervisor? It depends on whether the claim for sexual harassment is being brought under federal law or Ohio law. A recent case decided by the Supreme Court has somewhat limited the definition of “supervisor” for federal law claims brought under Title VII of the Civil Rights Act of 1964. In Vance v. Ball State University, the United States Supreme Court found that someone is a “supervisor” only if he or she is empowered by the employer to take tangible employment actions against the victim. This means that the harasser-would-be-supervisor has to be able to cause “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”
As it turns out, the term “supervisor” is not defined by Ohio law. Usually when this happens, courts will interpret Ohio law to be similar to Title VII, and apply definitions from Title VII to interpret Ohio law. However, this does not mean that the definition of “supervisor” provided by the Supreme Court in Vance applies to claims of sexual harassment under Ohio law. In fact, Courts in Ohio who have been asked to apply Title VII’s definition of “supervisor” to Ohio law have expressly refused to do so, noting that the definition should instead be interpreted broadly, as Ohio’s definition of “employer” is. In McCormick v. Kmart Distrib. Ctr., the Northern District of Ohio held:
In the seminal case of Genaro v. Central Transport Inc., 84 Ohio St.3d 293, 703 N.E.2d 782 (1999), the Supreme Court of Ohio held that “the clear and unambiguous language of R.C. 4112.01(A)(1) and (A)(2), as well as the salutary antidiscrimination purposes of R.C. Chapter 4112, and [the Supreme Court of Ohio]’s pronouncements in cases involving workplace discrimination, [are] all evidence that individual supervisors and managers are accountable for their own discriminatory conduct occurring in the workplace environment.” Id. at 787. In order to reach that conclusion, the Supreme Court of Ohio scrutinized the term “employer”, as that term is defined by O.R.C. § 4112.0115, and compared and contrasted the state discrimination statute’s definition of the term with the corresponding Title VII definition. The Supreme Court of Ohio relied upon the rationale that “the differing numerosity requirements and uses of agency terminology indicate that Title VII’s definition of ‘employer’ is far less reaching that the encompassing language of R.C. § 4112.01(A)(2).” Id. at 787.
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Therefore, the same rationale utilized by the Supreme Court of Ohio in Genaro, supra., for establishing individual liability under § 4112, that is, a broad construction of the term “employer”, would support a more expansive interpretation of that term under § 4112 in order to determine what constitutes a “supervisor.”In Ohio, the state discrimination statute defines “employer” as “any person employing four or more persons within the state”, and “any person acting directly, or indirectly in the interest of the employer.” Therefore, evidence of supervisory power which has no economic effect on the plaintiff may be considered under the state discrimination statute.
Thus, unlike Title VII, you don’t need the power to take a “tangible employment action” against an employee to be considered a “supervisor” under Ohio law. As a result, the Supreme Court’s decision in Vance is likely to have very little impact on victims of sexual harassment in Ohio.
If this has left you with more questions about your particular situation, you have a good reason to call the right attorney to get help. Indeed, once you determine that sexual harassment occurred, next question, “What should I do when I’m being sexually harassed?” definitely needs the direct involvement of an experienced attorney to help.
Sexual harassment is unlawful under Title VII of the Civil Rights Act of 1964 and similar Ohio laws. If you feel that you are being sexually harassed or are working in a sexually charged or hostile working environment, you should not wait to call the right attorney at 866-797-6040 to schedule a free and confidential consultation. At Spitz, The Employee’s Law Firm, you will meet with a sexual harassment lawyer/hostile work environment attorney to find out what your legal rights are and the best way to protect them. Sexual harrassment is a form of gender discrimination, and employers should be held accountable if they discriminate against female workers in any fashion – but particularly for sexual harrassment.
Disclaimer:
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