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The number of harassment charges filed with the EEOC and state fair employment practices agencies has risen significantly in recent years.
For example, the number of sexual harassment charges has increased from 6,883 in fiscal year 1991 to 15,618 in fiscal year 1998.
Alternatively, the employee might reasonably believe that a harasser with broad delegated powers has the ability to significantly influence employment decisions affecting him or her even if the harasser is outside the employee’s chain of command.
If the harasser had no actual supervisory power over the employee, and the employee did not reasonably believe that the harasser had such authority, then the standard of liability for co-worker harassment applies.
On the other hand, someone who merely relays other officials’ instructions regarding work assignments and reports back to those officials does not have true supervisory authority.
Any employment action qualifies as “tangible” if it results in a significant change in employment status.
The federal employment discrimination statutes do not contain or define the term “supervisor.” The determination of whether an individual has sufficient authority to qualify as a “supervisor” for purposes of vicarious liability cannot be resolved by a purely mechanical application of agency law.
Therefore, that authority must be of a sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment.
The Court stated that an employer is liable for hostile work environment harassment by employees who are not supervisors if the employer was negligent in failing to prevent harassment from taking place.
In assessing such negligence, the Court explained, the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent. 2275 (1998), the Supreme Court made clear that employers are subject to vicarious liability for unlawful harassment by supervisors.