Can an employer be held liable for sexual harassment committed by an employee other than an agent or supervisor?

"By providing harassment of an employee by an employee other than an agent or supervisor shall be unlawful only if the employer knows or should have known of the harassment and fails to intervene, section 12940 reflects that harassment by a supervisor is unlawful regardless of whether the employer knows or should have known and fails to intervene." (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal. App.4th 397, 415, 27 Cal.Rptr.2d 457, original italics.)

Similarly, in Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 58 Cal.Rptr.2d 122, the court commented that "characterizing the employment status of the harasser is very significant." (Id. at p. 1046, 58 Cal. Rptr.2d 122.) "[A]n employer's liability under [FEHA] for an act of sexual harassment committed by a supervisor or agent is broader than the liability created by the common law principle of respondeat superior. .. ." (Id. at p. 1048, 58 Cal.Rptr.2d 122, original italics.) Section 12940 "has been interpreted to mean that the employer is strictly liable for the harassing actions of its supervisors and agents [citations], but that the employer is only liable

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