Friday, August 19, 2016

Third Party Harassment?

Are we responsible for the guy (or gal) who delivers our water??

Most likely, yes. Third party harassment is prohibited under federal law. The EEOC’s regulations state "An employer may be held liable for the actions of non-employees, with respect to harassment of employees in the workplace, where the employer knew of or should have known of the conduct and fails to take immediate and appropriate corrective action." We all know, or should know, what illegal harassment means in our workplaces and how we should handle it. But are we as familiar when the culprit isn’t an employee? How about a customer, a vendor, a repair person, or a patient or client? 

We’re probably all familiar with instances where a vendor or sales rep behaves inappropriately toward an employee, usually in a not so thinly veiled sexual manner. The occasional one-off may not be actionable, although certainly offensive. However, persistent and severe harassment must be dealt with appropriately.

In 2014, Dal-Tile Corp. found out the hard way. In Freeman v. Dal-Tile Corp., Freeman was a customer service representative who interacted daily with a sales rep of a customer of Dal-Tile. Over a period of three years, she endured some very ugly racial and sexual harassment from him. While she reported the incidents, her employer did not take appropriate action and allowed the behavior to continue. Freeman sued. While the district court initially granted summary judgement to Dal-Tile, the 4th Circuit overturned that ruling and applied a negligence standard to the employer for a hostile work environment.

Another more recent case, EEOC v. Costco gives more weight to the responsibility of employers. For over a year, a Costco employee was subjected to unwanted physical touching, unwanted requests for dates and overly intrusive personal questions from a customer. The court found that "Costco failed to take reasonable steps to stop the harassment, noting that Costco waited more than a year to ban the customer from the store".

What you should do:
  • Review your anti-harassment policy. Ensure it covers third-party harassment; what it is, that you prohibit it, and make clear what an employee needs to do to report such behavior.
  • Train your managers and supervisors. Ensure they understand this is prohibited conduct that they cannot take lightly. Include third-party harassment in your training for employees as well.
  • Investigate any complaint just as seriously as you would if it involved an employee.
  • Act promptly. If your investigation shows harassment occurred take appropriate action that is designed to resolve the problem. You may need to bar a customer or client from your premises or require a replacement for a contractor or service provider. This will be a difficult conversation to have with a customer or vendor, but half-hearted attempts will not solve the problem, just as they don’t when the harasser is an employee.
  • As always, inform the complainant what steps you took, and encourage him or her to report any further incidents.

And remember, the customer (or vendor, client, patient, etc.) is not always right.

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