THE CUSTOMER IS NOT ALWAYS RIGHT: THIRD PARTY HARASSMENT

We’ve discussed sexual harassment pretty extensively through a number of articles. There is one scenario, however, that we haven’t tackled yet – third party harassment. It goes without saying that sexual harassment by a co-worker, manager, or executive is unlawful activity. But what about third parties – customers, vendors, and the like? Does your company have any duty to protect you from harassment by a person that it doesn’t even employ?

The answer, most likely, is yes. While there do not appear to be any Kentucky state court opinions on this particular matter, a number of Federal District and Circuit Courts, including courts within the Sixth Circuit, have held that employers have a duty to provide employees with an environment free of illegal harassment. This prohibition against workplace harassment is applicable to all persons entering onto the employer’s premises, or conducting business with the employer.

Generally, an employer will be liable for harassment by a third party if the employer “fail[ed] to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.” Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1074 (10th Cir. 1998). In other words, if the harassed employee has reported the harassment, or if a company’s management is otherwise somehow made aware of the harassment, the employer must correct the work environment. The other requirements of a hostile work environment claim remain the same, which can be viewed here. Below are some examples of cases involving third party harassment:

In Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848 (1st Cir. 1998), a female employee complained to her employer about harassment she was subjected to by an executive officer of one of the employer’s most important clients. The employer instructed the woman to give in to the sexual advances of the executive in order to satisfy the client. After she refused, the employee was terminated. At trial, the jury found in favor of the employee. The First Circuit upheld the jury’s verdict, stating that “employers can be held liable for a customer’s unwanted sexual advances, if the employer ratifies or acquiesces in the customer’s demands.” Id. at 854.

In Crist v. Focus Homes, Inc., 122 F.3d 1107 (8th Cir. 1997), two caregivers working for a residential home for individuals with developmental disabilities were repeatedly sexually assaulted by a resident of the home. The caregivers reported the assaults to management, who responded by asking one of the caregivers to allow the resident to assault her in front of the home’s executives so they could view the conduct. The Eighth Circuit held that the home could be liable for the conduct of the resident, stating that the home “clearly controlled the environment in which [the resident] resided, and it had the ability to alter those conditions to a substantial degree.” Id. at 1112.

And in Lockard v. Pizza Hut, 162 F.3d 1062, 1074 (10th Cir. 1998), a female server for a restaurant was severely harassed by two male customers who visited the restaurant on a number of occasions. The two men made multiple offensive comments to the server during their visits, prompting the server to file a complaint with her manager. The restaurant took no action to prevent the men from further harassing the server. Following her complaint, the men came into the restaurant again, and when the server came to their table, one of the customers pulled the server’s hair, then grabbed her breast and placed his mouth on it. The Tenth Circuit held that the restaurant was liable for the conduct of the customers, stating that the restaurant’s manager had “notice of the customers’ harassing conduct and failed to remedy or prevent the hostile work environment.” Id. at 1075.

In all of the above cases, the employer was made aware of the harassment that was occurring, but failed to prevent the harassment from continuing. If you have encountered a situation similar to those experienced by the plaintiffs in the cases mentioned here, you should seek counsel immediately to learn about the legal remedies that are available to you.

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