Companies must stop harassment – even if it’s by non-employees

Everyone knows that a business can be sued if an employee is harassed because of race, sex, religion, etc., and the company doesn’t take appropriate action. But did you know that a business can sometimes be sued even if the harasser doesn’t work for the company?

That’s right – businesses sometimes have a legal duty to protect their workers from harassment by third parties, such as clients, customers, contractors, vendors, and other people they come into contact with in the course of their work.

A company that leases office space, for example, might have to protect against harassment by security guards or maintenance workers hired by the landlord, as well as by caterers and others who are brought in to do work on-site.

Of course, a company has no direct control over the actions of customers and contractors, and it can’t simply “fire” someone who doesn’t work for it. But an employer still has an obligation to investigate the situation and to take reasonable steps to stop the harassment to the extent possible.

In a recent case in North Carolina, a black saleswoman who worked for a tile company claimed that she had been subjected to a barrage of racial and sexual abuse by a sales representative for a major client. She said her boss acknowledged that the sales rep was a “pig,” but did nothing to help. She finally went to the human resources department, which responded by banning the sales rep from the premises. But the company later changed its mind and allowed the rep on-site as long as he didn’t talk to the saleswoman.

The saleswoman finally quit her job because of her anxiety over having the sales rep on the premises, and brought a lawsuit.

A federal appeals court allowed her claim. It said merely prohibiting the sales rep from talking to the employee might have been a reasonable solution if the company had done it sooner – but in this case, it could be sued because it didn’t act at all until the woman had already been subjected to a lengthy campaign of racial slurs and sexual misconduct.

Meanwhile in Hawaii, an employee at a medical clinic claimed she was subjected to repeated verbal harassment and threats of violence by a male patient. The clinic rejected her requests to change the patient’s treatment schedule so she wouldn’t have to work with him, and then fired her when she went ahead and changed his schedule anyway.

A federal judge allowed the woman to sue, saying the clinic had an obligation to keep its employees from facing a “hostile work environment” – even if the environment was caused by a patient and not an employee.

It’s important to note that while a company has to respond to harassment by outsiders, it can’t simply “solve” the problem by putting the employee in a worse position. For example, it can’t demote someone so that he or she no longer has to deal with certain customers or vendors.

The situation can be especially difficult if the employee is harassed by an employee of a major client. Working with the client might otherwise be a “plum” assignment, and while the employee doesn’t want to be harassed, he or she probably also doesn’t want to lose the opportunity to work on the account.

Employers also cannot retaliate or punish a worker for complaining about harassment.

In one recent case, a female graduate student worked as a manager for the Hofstra University football team. She sued the university, claiming she had been sexually harassed by some of the football players. Of course, Hofstra didn’t “employ” the football players, but it still had a duty to remedy the situation.

A federal appeals court decided that Hofstra had in fact responded properly, because it stopped the harassing behavior, kicked one of the offending players off the team, and required the entire athletics department to undergo sex harassment training.

Nevertheless, the following semester Hofstra replaced the student as the team’s manager. The court said the student could still sue, because taking away her job could be seen as “retaliation” for making a legitimate complaint.

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