Employment law frequently makes distinctions between “supervisors” and non-supervisors. In the context of sexual harassment, the U.S. Supreme Court has developed markedly different standards for imputing liability to the employer depending on whether the offender is a supervisor or a coworker. Under federal law, when the alleged harasser is a coworker, the employer will be vicariously liable only if the employee proves negligence.
However, when a supervisor creates a hostile work environment, the employer in most cases will be vicariously liable unless it can satisfy the burden of proving an affirmative defensethat it had an effective anti-harassment policy in place and that the employee unreasonably failed to take advantage of such policy.
