Thursday, June 19, 2014

Risks of Harassment by Non-Employees

Employers Liable for Third Party Harassment

As HR pros, we get that sexual harassment from coworkers or supervisors is a serious problem should it occur and that our organization is responsible for preventing it and stopping it. But are we as quick to deal with it if the perpetrator isn’t an employee, but someone from outside, like a vendor, a delivery person or repairman, or even a business partner? Are you prepared to handle that? A recent case heard by the U.S. Court of Appeals for the Fourth Circuit shows us that Dal-tile Corp probably wishes it handled the situation differently. This article from Littler summarizes the case here. The employee was a customer service representative at Dal-tile and had been repeatedly harassed by a sales rep from a client business. The bottom line is that the court found that an employer is liable for harassment by a third party when the employer knows or reasonably should have known about the harassment and fails to take prompt, remedial action reasonably calculated to end the harassment. 

Furthermore, another recent case involving students’ harassment of their teachers shows us that the environment doesn’t matter – business office or classroom – as an employer, you may be liable for third party harassment. In this case, a Catholic school teacher brought a lawsuit against a school alleging that students took turns taking photos up the skirts of their female teachers. The teacher was harassed for more than two years in her own classroom without supervisors or school administrators intervening, despite her repeated complaints. You can read about it further here.

While these types of situations can occur at any business, it’s probably not surprising to think that establishments like bars and restaurants may be more prone to such incidents; and even hospitals and nursing homes or country clubs. But any business is vulnerable.

What should employers do to minimize the risk of potentially costly third-party liability lawsuits? Remember that courts want to see whether an employer took "immediate and appropriate corrective action" to remedy the situation, but also want to see that you take sexual harassment seriously and have taken positive steps to prevent it. Some steps include the following:

  • Train supervisors that harassment of employees by outsiders is every bit as serious as harassment by fellow employees or supervisors. Make sure your anti-harassment policy includes this point.
  • Train all employees that they should report any offensive conduct from customers, patrons, patients, delivery or service people or any other outsiders in the same way as if it came from co-workers or supervisors.
  • If you receive a complaint about an outsider, conduct an investigation as thoroughly and seriously as you would with an insider complaint. Your investigation may be more difficult, but no less important. Gather as much information as possible and draw a reasonable conclusion.
  • Act promptly if your investigation shows harassment occurred. And do so in a way designed to resolve the problem. If you find that harassment did occur, you’ll need to take action: bar a customer or client from your company, store or restaurant, replace a contractor or service provider with a different one.
  • Inform the complainant what steps you took, and encourage her to report any further incidents.
Management may feel reluctant to confront a customer or client, especially.  How do you control someone who is not your employee? How do you confront someone who may be paying you for services?  Despite the potential disruption, discomfort and possible loss of revenue from taking action against a client or customer, that certainly will be less than what it could cost you in a lawsuit, the good will of your employees and in the eyes of your community.

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