People usually think of workplace harassment in terms of supervisors harassing employees or employees harassing peers. But no matter what rank employees hold, it has long been a fact of workplace life that employers are responsible for prohibiting unlawful harassment in the workplace and taking corrective action if it does occur.
However, a recent Missouri case demonstrates that employers’ responsibilities for addressing harassment in the workplace extend beyond the individuals who collect a paycheck from the company.
In a sexual harassment case that drew widespread attention, a Jackson County Circuit Court jury in February awarded damages of more than $2.5 million to a female employee at an Independence auto parts store. The female employee alleged she was repeatedly sexually harassed by two customers and complained to her managers, but they took no action, to avoid losing the customers’ business.
The case serves as a reminder to employers about what harassment claims can look like in their workplaces. Generally, the law defines sexual harassment as offensive and unwelcome conduct based on sex which creates a work environment that a reasonable person would consider hostile or abusive. The law also prohibits harassment based on age, color, disability, genetic information, national origin, and race, as well as prohibiting retaliation because of harassment complaints.
Harassment also can involve non-employees who are on the company’s premises, including subcontractors, repair people, sales representatives, delivery people — even the customers who keep the business going.
Generally, employers may be liable for a non-employee’s harassment of an employee where the employer knows or should have known about the harassment, has some control over the situation and does not take prompt and appropriate corrective action to stop the harassment and prevent future harassment.
The question of how to handle harassment perpetrated by someone outside the company differs, depending on the nature of the business and the alleged harasser’s relationship with the organization. Regardless of the type of business, the employer should listen and take the situation seriously when it becomes aware an employee is being harassed by a non-employee.
The employer should first investigate the issue and determine whether the issue can be resolved internally. In the case of customer harassment, a restaurant employer, for example, could switch a table assignment or even prohibit a patron from returning. Other companies might conclude they need to request that the harasser’s employer assign a different person to the account or even discontinue the relationship with a vendor. In any case, it’s imperative that the company take corrective action to address the harassment where warranted.
When a customer is involved, switching the customer to another contact person may be appropriate, allowing the company to retain the customer’s business while also making sure the affected employee doesn’t have to interact further with the offender. However, the employer must not put a second employee into the same line of fire and should consider whether the employee who was harassed is being financially or otherwise harmed by the substitution.
Allowing harassment to occur in the workplace, regardless of who perpetrates it, can have real and potentially expensive ramifications. The law puts the responsibility for addressing workplace harassment squarely on employers’ shoulders, whether the harasser is an employee or non-employee at the company’s work site. Employers therefore should include language in their harassment policies to make sure that their employees understand that they may report harassment by non-employees, including customers, and then take appropriate action when such complaints are received.
Greg Ballew is a partner in the Kansas City office of labor and employment firm Fisher & Phillips LLP. To reach him, call 816-460-1236 or send email to firstname.lastname@example.org.