If you are enduring sexual harassment in the workplace, the identity of your "harasser" can have a huge impact on your rights. For example, if the harasser is your "supervisor," your employer is directly responsible for his or her harassing behavior. But if your harasser is merely a "coworker," it is an entirely different story. In those cases, your employer is only responsible if it "knew or should have known" of the harassment but failed to take "prompt and appropriate corrective action." Basically, if a mere "coworker" is harassing you in private, and management isn't aware of it, then you don't have much of a legal claim until you tell management, they fail to fix it, and the harassment continues.
Sometimes it is easy to determine who is the "supervisor," and sometimes it's not. For example, who is higher in the organizational chart – the "Assistant Regional Manager" or the "Regional Director in Charge of Sales"?
For approximately the last ten years, the law has been that a person is a "supervisor" if he or she is "empowered by the employer to take tangible employment actions against the victim." Therefore, it technically doesn't matter what a person's job title is, though it can often give us a clue. Instead, did the person hire you without running it by anyone else? If so, he or she is likely a "supervisor." Can that person fire you? Then he or she is a supervisor. Anyone who has the ability to hire, promote, demote, or fire you is a supervisor – and anyone who can't do those things is not.
Keep in mind one additional layer of complexity. If, as part of the harassment, your harassing supervisor actually took a "tangible employment action" against you – like demoting you, not promoting you for an open position, or firing you – then your employer is legally responsible for the harassment and will not have much of a defense. But many times, harassing supervisors don't go so far as to fire their victims but are simply content to subject them to regular workplace harassment, knowing that the victims cannot do much about it lest they put their jobs at risk. In this way, it is only the specter of a harassing supervisor's ability to fire you that looms in the background. In those cases, where no "tangible employment action" has been taken against you by the supervisor, your employer is still responsible but can avoid liability by proving that (1) you failed to take advantage of "corrective opportunities" (for example, following the handbook's policy on harassment reporting) and (2) the employer took reasonable steps to stop the harassment.
Taken together, a victim of workplace harassment often needs to speak up, as that is the surefire way to avoid any debate about whether the victim "failed to take advantage of corrective opportunities." Victims are naturally reluctant to speak up for many understandable reasons, but if there's doubt about the right procedure to protect your job, it is time to talk to a lawyer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
