In our August 2007 Labor and Employment Newsletter, we cautioned employers that the scope of liability for a supervisor’s actions, particularly in a sexual harassment case, are incredibly broad. In a recent California case, the Court held that the definition of “supervisor” can include a lead employee for purposes of determining liability in a sexual harassment case. The Court emphasized that the determination will rest on the employee’s actual responsibilities, not his or her job title. In Almanza v. Wal-Mart Stores, Inc, the plaintiff worked as an unloader. Her responsibilities were to unload merchandise from delivery trucks. She worked in a crew of six to eight employees, one of whom was the lead unloader. The lead unloader’s responsibilities included unloading trucks, ensuring that other unloaders removed and stacked freight quickly and efficiently, asking unloaders to find empty pallets for incoming merchandise, and occasionally instructing other unloaders to stock the sales floor. Plaintiff claimed that the lead unloader sexually harassed her and that Wal-Mart was strictly liable for the harassment because the lead unloader was a supervisor under FEHA.

Who Is A Supervisor As Defined By FEHA?
Under FEHA, a “supervisor” is “any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routing or clerical nature, but requires the use of independent judgment.”

Although the lead unloader in the Wal-Mart case was compensated on an hourly basis and had no authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, Plaintiff introduced evidence showing that the lead unloader authorized breaks, scheduled overtime work, and often contributed to performance appraisals. Plaintiff also pointed out that the lead unloader was unofficially permitted to authorize sick leave, late arrivals, vacation requests, and prepare performance appraisals. In rebuttal, Wal-Mart argued that the lead unloader acted only on the orders of another supervisor and that his opinions were afforded little or no weight. The Court determined that there was enough evidence of the lead unloader’s authority that a jury should decide whether he was a supervisor under FEHA and permitted Plaintiff to proceed with her sexual harassment claim.

Why Is The Classification Of Supervisor Important?
FEHA imposes two standards of employer liability for sexual harassment. These two standards turn on whether the employee engaging in sexual harassment is considered a supervisor or not. If the employee is a supervisor as defined under FEHA, the employer is held strictly liable for the supervisor’s actions. This means that an employer would be held responsible for the harassment even if the employer had no knowledge of the harassment. If the employee is not considered a supervisor under FEHA, the employee bringing a harassment claim must show that the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action in order to hold the employer liable for the harassment.

How Does This Case Impact Employers?
Knowing who qualifies as a supervisor under FEHA is essential in order to comply with California’s employment laws. For example, in California, all employers are required to provide two hours of sexual harassment training to all supervisors upon hire and every two years thereafter. If a current employee is promoted to a supervisory position, an employer has six months from the date of promotion to provide this training. No such requirement exists for non-supervisory employees. As the Wal-Mart case makes clear, relying on job titles alone to determine which of your employees are supervisors is a dangerous practice. Instead, you should consider the actual authority your employees are allowed to exercise. If they direct the day-to-day activities of others, they are likely supervisors within the meaning of FEHA.

Training Reminder
We would like to take this opportunity to remind you to schedule training sessions for your supervisors because a new training year is approaching. For those supervisors who last received training in 2006, two more hours of training are required in 2008. Also, do not forget to train your new supervisors within six months of promotion or hire. If you are unsure about who needs to be trained, how to enroll in a training session, or if you have any other questions regarding sexual harassment training, please feel free to contact us at 916-441-2430 or newsletter@wilkefleury.com.