Are you liable? Yes. However, the liability may be shared, depending on the circumstances. Because temporary employees usually work for temp agencies, they're generally considered employees of those agencies. So the agencies have the first line of responsibility. "The staffing firm is the primary employer, even though [the temp] may be working at the worksite of another employer," says Edward Lenz, senior vice president, legal and government affairs for the National Association of Temporary and Staffing Services (NATSS) based in Alexandria, Virginia.
However, you should know that most staffing agencies don't educate their temps or contingent workers specifically about sexual harassment before sending them on assignment. Rather, they usually tell contingents that if they have any "problems or concerns" while on the job, to immediately report those problems to them, says Lenz. "Staffing firms might be reluctant to get into particulars," he adds. "If they put a line in their policy manual that says 'What to do if you're sexually harassed by the customer,' it sets a negative tone for the employment relationship," he says. "So I think some [temp] firms might put those kinds of issues into a more generic context."
That could be a problem for you on two counts. First, because you share responsibility for what happens to temporary workers while they're on your premises, it might be wise to let them know what problems to look out for, such as personal security risks and discrimination, which includes sexual harassment.
Secondly, if temp firms instruct their workers to report sexual-harassment problems to them, and not to you, you may never hear about it since most agencies tend to simply remove a temp from a situation in which they're experiencing problems and place them elsewhere.
Some agencies, however, will address the situation directly with you on behalf of their employees. That's good. Because if one of your employees is harassing people, you need to step in and put an immediate stop to it. Or, if one of your vendors is harassing temps, they're probably also harassing your other workers, and you need to address that, too. If you have a choice (and you usually do), you might consider negotiating disclosure of these issues when you negotiate your initial contract with a temp agency.
"I have seen some [companies] who address independent contractors in their sexual-harassment policies, which is a very good idea that makes it clear to them and to employees that sexual harassment is unacceptable," says Marcia Haight, a sexual-harassment expert and president of Haight Consulting in Pacific Palisades, California.
Dallas-based Texas Instruments, for example, sends its temporary workers through a brief orientation which covers, among many other business issues, sexual harassment. Texas Instruments' human resources trainers also make sure contingents get a copy of their sexual-harassment brochure.
Other companies say they also ask temporary workers to report incidents of sexual harassment to them in addition to telling their agencies. Others also insist on doing investigations themselves. "The advantage of keeping it in-house would be that you would have control over the promptness and quality of the investigation, and you could satisfy yourself that your accused [full-time] employee, or the temp employee, was given a fair shake in the investigation if you did it yourself," says Haight.
Clearly, someone needs to do something. "There's potential liability if neither party takes appropriate action to address the harassment issue," says Lenz. "Both could be liable."
While sexual harassment of temporary workers might not be an everyday occurrence, by not addressing the issue in advance, you may have some surprises in store for you down the road. Some surprises aren't worth waiting for.
Personnel Journal, July 1995, Vol. 74, No. 7, p. 44.