By Annika Lindberg and Karen Carrera

Imagine that a public agency has brought you on to investigate alleged harassment between a junior analyst and a program administrator.  A lot of people’s first thought might be, “But was the administrator the analyst’s supervisor?” While examining organizational charts can be a good way to start an investigation, the analysis doesn’t necessarily end there. A thorough investigation will consider many factors that could lead to a power imbalance issue, not just the chain of command.

What is a Supervisor in the Eyes of the Law?

To ground our understanding of how power imbalances come to be, we must first understand some vocabulary. Under the California Fair Employment and Housing Act (FEHA), an Employer is defined as “any person regularly employing five or more persons, or any person acting as an agent of an employer” (Gov. Code, § 12926, subd. (d)). FEHA also provides us with a definition for Supervisor as follows: “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 routine or clerical nature, but requires the use of independent judgment”(Gov. Code, § 12926, subd. (t)). Notice what anchors this definition: not a title or a spot on the org chart, but the authority to affect another employee’s working life through the exercise of independent judgment.

Why Supervisory Status Matters Legally – The Two-Tier Rule

FEHA establishes a two-tier framework for employer liability. Under State Dept. of Health Services v. Superior Court, an employer is strictly liable for harassment by a supervisor, but is liable for harassment by a coworker — however senior — only if the victim proves negligence: that the employer knew or should have known of the harassment and failed to act (31 Cal.4th 1026, 1040–1041 (2003)). For workplace investigators, this supervisor-versus-coworker distinction often determines the employer’s legal exposure.

What Supervisory Status Does Establish

Because strict liability turns on the supervisor relationship, the threshold question is who actually qualifies as a supervisor. In Chapman v. Enos, the Court of Appeal defined “supervisor” functionally, holding that under FEHA the “responsibility to direct” an employee’s day-to-day work is enough, and that authority to hire or fire is not required (116 Cal. App.4th 920, 930 (2004)). Chapman also cited EEOC guidance as persuasive, though not controlling, recognizing that a harasser the employee reasonably believes holds power can matter “even if the harasser is outside the employee’s chain of command” (id. at 930, fn. 10). Chapman thus broadens the definition of supervisor beyond titles and org charts, while keeping it tied to the authority to direct another employee’s work.

Supervisory Status is Not the End

Supervisory status remains important for determining an employer’s liability. However, when assessing the severity of harassment, California case law allows us to look outside of the chain of command.

In Roby v. McKesson Corp., the California Supreme Court reinforced that formal power is not required to commit harassment: it “does not matter whether the harasser is the president of the company or an entry-level clerk.” However, harassment by a high-level manager “may be more injurious to the victim because of the prestige and authority that the manager enjoys” (47 Cal.4th 686, 707 (2009)). Most recently, in Bailey v. San Francisco District Attorney’s Office, the Court held that a harasser’s status is a significant factor—weighed in the totality of the circumstances, not as a defining element—in assessing the severity of harassment, because “not all power appears on an organizational chart” (16 Cal.5th 611, 633 (2024)). A coworker “who holds the manager’s ear, is given preferential treatment, or has special sway” may be able to alter the conditions of others’ employment “without having direct managerial authority.”

Considering Liability and Severity Together

What these three cases show is that a harasser need not be the victim’s direct supervisor for the conduct to be severe enough to trigger action. While Chapman reminds us that the reporting line still drives the ultimate liability determination, Roby and Bailey make clear that power, both formal and informal, is what shapes how severe the harassment is judged to be.

Severity and the “knew or should have known” rule are not the same test: severity (where the harasser’s power matters) decides whether actionable harassment exists, while the negligence rule separately decides whether the employer is liable for a coworker’s harassment based on the employer’s own knowledge and response.

Factors That Create a Power Imbalance Without a Direct Report

Bailey suggests that power rarely tracks the organizational chart. Because Bailey directs investigators to weigh the harasser’s status in the totality of the circumstances, the analysis turns on actual influence rather than formal title. No single factor controls; the goal is to assess whether the alleged harasser held meaningful power over the complainant and whether a reasonable person in the complainant’s position would have experienced it that way.

Formal and structural factors include:

  • Seniority or rank
  • Influence over hiring, assignments, promotions, discipline, or references
  • Role-based leverage, such as positions in HR, legal, or finance

Informal and relational factors include:

  • Proximity to decision-makers—the employee who “holds the manager’s ear”
  • Preferential treatment or special sway within the office
  • Perceived authority, even absent formal power
  • Practical, day-to-day control over the complainant’s work

Personal and situational factors include:

  • Age and career stage
  • Economic disparity between the parties
  • Tenure and institutional knowledge
  • Social capital within the organization
  • Dependency relationships, such as mentorship, access, or opportunities

These factors inform whether an imbalance existed and how a reasonable person would have experienced the conduct; they do not replace the FEHA definition of “supervisor” when determining liability.

Assessing Potential Power Imbalances in Context

So return to our junior analyst and the program administrator. There may be no line connecting them on the agency’s organizational chart, and the administrator may have no formal authority to hire, fire, or discipline the analyst. But as thorough investigators, we must ask the questions the chart cannot answer.

Does the administrator control the projects the analyst is assigned, the visibility they get, or the people they need access to?

Does the administrator hold the ear of the decision-makers who will shape the analyst’s future at the agency?

Does the administrator hold a role, such as in HR, that could shape what happens to the analyst if she came forward?

If the answers point toward real or perceived influence, then a power imbalance existed,  regardless of the reporting line. The question should not only be “Was he her supervisor?” but “Did he have power over her, and would a reasonable person in her position have felt it?”

Annika Lindberg is a fellow at Renne Public Law Group and is the legal assistant of the Investigations Practice Group.  She plans to attend law school after her fellowship ends.

RPLG can assist you with your investigation.  Call us at 415-504-1856 or email us at KCarrera@publiclawgroup.com.