ou know what to do when one of your supervisors makes unwelcome advancestoward his employee. HR is well drilled in the policies, protections, andactions warranted by basic workplace sexual harassment. But third-party sexualharassment is almost as common -- and is rarely taken as seriously or dealt withas swiftly. Yet it’s just as wrong, and just as laden with liability for yourcompany. Employment law attorney Bradley T. Adler of Atlanta-based FreemanMathis & Gary, LLP discusses the dos and don’ts of dealing withthird-party sexual harassment.
Is this an under-recognized area of liability?
The focus of employers really revolves around workplace harassment byemployees. That’s the traditional arena in which they try to preventharassment. But employers need to be aware that there is liability in harassmentby non-employees.
And what’s the legal basis for this?
Back in 1997, the EEOC filed regulations that said essentially that anemployer can be held responsible for the actions of non-employees with respectto the harassment of employees in the workplace. Liability begins if an employerknows or should have known of the conduct and failed to take immediate andappropriate corrective action. It’s pretty similar to the affirmative defense.Which is: If you have notice of it or should have notice of it, you need to takeaction and correct it.
So what are some examples of third-party sexual harassment that we may notthink of immediately?
Take a cybercafe, where you have coffee and log on to the Internet. What if acustomer comes in, and each time, he logs on to Porn.com, and each time thewaitress who serves him sees that he’s logged on to this site. If the managerat this cybercafe knew about this -- either by virtue of seeing it or virtue ofher complaining -- the manager would need to take action if the waitress felt itwas harassment.
What kind of action?
It may be they transfer a male to the customer’s section -- although thatmay not relieve the cafe of liability; there’s nothing to say a male can’tbe harassed either. But the business can transfer over different employees whoaren’t bothered by the fact the customer is looking at the pictures while they’rewaiting on him. Or the manager could tell the customer he can’t have thescreen up on porn sites while being waited on. It comes down to correctiveactions -- the remedy isn’t exclusive. The options are numerous.
Does the waitress need to officially state that the conduct bothers her?
If, for instance, the computer faces the window, and the employer wouldn’tknow, then if the employee wants something to be done, the employer should beput on notice. That can be simply saying to the manager, "This guy islooking at porn. I don’t like it. It makes me uncomfortable."
So once an employee makes a statement of discomfort, the liability is there?
In Lockard v. Pizza Hut, a 10th Circuit case, a waitress was waiting on someindividuals. After one of the individuals at the table made some remarks shefelt were harassing and made her uncomfortable, she reported the behavior to oneof her managers. The manager essentially instructed Ms. Lockard to wait on them.She continued to be harassed. She was putting a beer down on the table, and oneof the customers pulled her to him by the hair, grabbed her breast and put hismouth on her breast. She resigned and brought suit against Pizza Hut.
The court found that an employer can be held responsible for thesexually-harassing actions of a non-employee, and in doing so they cited theEEOC regulations. Again, the waitress had told the manager she didn’t want towait on the people, she didn’t feel comfortable, and no appropriate reactionwas taken to remedy or relieve the situation.
What about a workplace in which an atmosphere or uniform may foster alikelihood of sexual harassment -- like a bar in which waitresses wear skimpyclothes?
Sexual harassment still needs to have the purpose or effect of reasonablyinterfering with a person’s work performance, or it has to be creating anintimidating, hostile, or offensive environment. It needs to be objectively andsubjectively offensive. That means if the individual didn’t find it offensive,certainly that can’t be harassment. The perspective that’s taken by a courtmay change depending on the particular employer. But certainly a waitress at amore risqué restaurant is not in any way precluded from suing.
In fact there’s one case of a casino waitress who was employed as a mime --a type of living doll. She brought suit under Title VII alleging she was beingharassed by a casino patron who was touching her as she was performing. In thatcase the 9th Circuit found the employer liable for sexual harassment on behalfof a private individual -- the casino patron -- where the employer eitherratifies or acquiesces in the harassment by not taking immediate action when itknew or should have known of the conduct.
Can an employee refuse to wear something skimpy and file for harassment ifthe employer enforces the dress code?
There are situations where provocative dress codes are going to lead to areal likelihood of harassment. Like dress codes where an employee is required towear provocative uniforms, like a short skirt and low-cut blouse. Even if it isprovocative dress, and the employee knows this going in, if there’s harassmentand the employee complains to the employer, the employer still needs to takeaction.
And plaintiffs win these cases?
There’s a case in which the plaintiff was a lobby attendant, and she wasrequired to wear as a condition of her employment a poncho. It was prettyskimpy, open at both sides, and she wasn’t allowed to wear a blouse, skirt, orother garment under the poncho. The uniform revealed her buttocks. Shecomplained it was subjecting her to harassment -- lewd comments and suggestions-- frankly, what people may expect to happen wearing that kind of uniform. Whenshe notified her employer that she was being subjected to this harassment, shewas told no exceptions to the uniform would be granted. She refused to wear theuniform and was discharged.
The court found the employer discriminated against her based on violation ofTitle VII, because it required her to wear the uniform when it in fact knew itwas subjecting her to this harassment. So it comes back to this: Does theemployer know and does it do anything? Now, the employer could have gotten auniform that fit the plaintiff -- apparently she was tall and it didn’t fit aswell as it could have -- or it could have somebody posted by her to prevent herfrom receiving any sort of comment, or if she did receive comments, to escortthat person out. Again, there are a lot of options.
What are some other frequent examples?
Take an assisted living center, in which a particular resident likes to grabwomen as they come into help him bathe or to make the bed. If the employeecomplains about the resident and no action is taken, that can subject theemployer to liability. It kind of seems crazy; in many cases you’re dealingwith somebody who’s much older, whom you’re not going to take as seriously-- Oh, that’s just Mr. Jones, come on! Yet those actions can still subjectemployers to liability if they know about it, or should have known about it, anddidn’t take corrective action.
And companies dependent on sales, and relationships with customers, areparticularly prone, correct?
Say there’s a rep from Switzerland touring my facility, and one of myassistants is a lady that the rep is attracted to. What happens if the rep comeson to the assistant? The assistant comes to me and says, "Look what thisrep is doing -- I don’t like it a bit." If I were to say, "Tough,this is our biggest revenue gainer. I want you to put up with it, and if hegrabs your butt, if he plays footsie with you under the table, fine." That’sa liability. And if she doesn’t do it, and I fire her -- that’s retaliationalso.
What if it takes place outside of the workplace?
Let’s say I own a computer consulting company and I send my reps all overthe country. I send one to my biggest customer, ABC Inc., and the president ofABC harasses the rep. What happens when the consultant comes back and reportsthe harassment? And ABC says, "You need to continue to send this consultantout every week." Tough. The employer is under the duty to take some sort ofcorrective action to remedy the situation.
Does third-party harassment bring with it more or less liability?
Neither -- it all falls under Title VII. You have an obligation to make sureyour employee isn’t subjected to an environment filled with or injected withconduct that’s improper and unlawful under Title VII.
What should employers do?
Don’t limit your policies or training to actions taken by employees againstother employees. Expand them to cover actions taken against employees byemployees and non-employees: Harassment of employees is not tolerated.Disseminate the policy and implement it by having some training sessions. Or ifyou’re sending an employee to a customer site, remind that employee to reportany behavior that makes him or her uncomfortable. Make sure your employeesunderstand there’s a sexual harassment policy that covers not only conduct byemployees but by non-employees,and give them ways of reporting harassment.
Correct any actions you do know about or should know about. The "shouldknow about" is taken care of by the fact that if you have a policy in placethat allows people to complain, you’re putting the burden on the employee tolet you know. You don’t need to check in all the time; the employer can’tknow all the actions that go on in or out of the workplace. But HR needs to knowif something is going on. And that will happen if the employees communicate tothem.
Workforce,November 2000, Vol. 79, No. 11, pp. 88-92 -- Subscribenow!
The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.