Tuesday, May 4, 2010

Employees Harassed by Customers: When is the Employer Responsible?

The Equal Employment Opportunity Commission’s “Guidelines on Sexual Harassment” take the position that “[a]n employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” EEOC Guidelines on Sexual Harassment, 29 C.F.R. § 1604.11(e) (2010).

Case law holds the same (in fact, generally applying the same negligence standard in non-supervisory co-worker harassment cases), finding employers responsible if they knew or should have known of non-employees’ harassing conduct and failed to take appropriate remedial measures. See, e.g., Erickson v. Wisconsin Dep’t of Corr., 465 F.3d 600 (7th Cir. 2006) (“[F]or purposes of Title VII hostile work environment liability based on negligence, whether the potential harasser is an employee, independent contractor, or even a customer is irrelevant: The genesis of inequality matters not; what does matter is how the employer handles the problem. This is because employers have an arsenal of incentives and sanctions . . . that can be applied to affect conduct that is causing the problem.”) (quoting Dunn v. Washington County Hosp., 429 F.3d 689, 691 (7th Cir. 2005)) (internal quotations omitted) (emphasis in original); Galdamez v. Potter, 415 F.3d 1015, 1022 (9th Cir. 2005) (“An employer may be held liable for the actionable third-party harassment of its employees where it ratifies or condones the conduct by failing to investigate and remedy it after learning of it.”); Weston v. Pennsylvania, 251 F.3d 420, 427 (3d Cir. 2001) (“Prison liability for inmate conduct may indeed apply when, for example, the institution fails to take appropriate steps to remedy or prevent illegal inmate behavior.”); Slayton v. Ohio Dep’t of Youth Servs., 206 F.3d 669, 677 (6th Cir. 2000) (“[A] general rule against prison liability for inmate conduct does not apply when the institution fails to take appropriate steps to remedy or prevent illegal inmate behavior”); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073-75 (10th Cir. 1998) (finding a one-time event in which a waitress had her hair pulled by a customer, who also grabbed and placed his mouth on her breast was severe enough to create an actionable hostile work environment); Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 854 (1st Cir. 1998) (finding that under Title VII “employers can be liable for a customer’s unwanted sexual advances, if the employer ratifies or acquiesces in the customer’s demands”); Crist v. Focus Homes, Inc., 122 F.3d 1107, 1108-1111 (8th Cir. 1997) (operator of residential facility for developmentally disabled individuals may be held liable for failure to respond appropriately to sexual harassment of caregivers by a mentally incapacitated resident); Folkerson v. Circus Circus Enter., Inc., 107 F.3d 754, 756 (9th Cir. 1997) (employer may be held liable for sexual harassment of employee by casino patron where employer ratifies or acquiesces in the conduct); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1992) (“[T]he environment in which an employee works can be rendered offensive in an equal degree by the acts of supervisors, coworkers, or even strangers in the workplace.”); Lopes v. Caffe Centrale LLC, 548 F. Supp. 2d 47, 53 (S.D.N.Y. 2008) (“An employer can be held liable for the harassing acts of non-employees if a plaintiff adduces evidence tending to show that the employer either failed to provide a reasonable procedure or that it knew of the harassment by a non-employee, such as a customer and failed to take any action.”) (internal quotations omitted); McGuire v. Virginia, 988 F. Supp. 980, 989 (W.D. Va. 1997) (“[E]mployer liability for a hostile work environment has been extended to situations in which the harassing conduct comes from nonemployees on the employer’s premises.”); Hanlon v. Chambers, 464 S.E.2d 741, 750 (W. Va. 1995) (“A hostile work environment can be just as oppressive when it is created by co-workers, subordinates, or customers as when it is caused by a superior.”); Powell v. Las Vegas Hilton Corp., 841 F. Supp. 1024 (D. Nev. 1992) (holding that whether two incidents of verbal abuse—“great t[*]ts” and “great legs”—and three incidents of staring by non-employees constituted sexual harassment of plaintiff was a triable issue of fact); Llewellyn v. Celanese Corp., 693 F. Supp. 369 (W.D.N.C. 1988) (employer liable where he failed to take prompt and adequate remedial action against sexual harassment, including harassment by customer); EEOC v. Sage Realty Corp., 507 F. Supp. 599, 611 (S.D.N.Y. 1981) (“Although section 703(a) [of Title VII of the Civil Rights Act of 1964] makes unlawful only discriminatory employment practices of an ‘employer,’ this term has been construed in a functional sense to encompass persons who are not employers in conventional terms, but who nevertheless control some aspect of an employee’s compensation of terms, conditions, or privileges of employment.”). See also Noah D. Zatz, Managing the Macaw: Third-Party Harassers, Accommodation, and the Disaggregation of Discriminatory Intent, 109 Colum. L. Rev. 1357, 1372-73 (2009) (collecting cases for the proposition that “[t]hird-party harasser cases apply the same negligence rule as coworker cases: The employer is legally responsible if it knew or should have known about the harassment and failed to take corrective or preventive action”).

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