Tuesday, February 24, 2009

Won’t you be my neighbor?  Allegations of Non-employee sexual harassment.

An employee complains to HR about being sexually harassed at work by a non-employee.  Can the employer face liability for a non-employee’s behavior?  The short answer yes, under Title VII the employer must investigate and take action to end the harassment.

My company has 83 cell phone stores across the country.  Two of these stores are within about 20 miles of each other in Tennessee. Both of these stores happen to be next to military recruiting offices and the same Recruiter works at both stores.  Recently this Recruiter has begun visiting female associates in our stores and making inappropriate sexual comments.  I had not heard anything about this situation until a few days ago, when the Recruiter’s wife stomped into one of the stores and told the female associates on duty to “stay away from her man.”  It was then that the associates reported to their manager that there has been ongoing inappropriate behavior by the Recruiter.  My little employment lawyer brain buzzed with questions.  What do you do when a non-employee is sexually harassing your employee?  Is there liability?  I had a vague recollection of a case involving a delivery man who repeatedly harassed the secretary at a client company who signed for the packages, the employer knew about the harassment, but, since the delivery man was a non-employee, did nothing to stop it.  In this case, however, the Recruiter is not an employee, a customer or a vendor – he is just a neighbor.  Neighbor or not, under Title VII of the Civil Rights Act of 1964 we may be held liable for sexual harassment by a person not employed by the company.  If one of our employees complains about being harassed by a non-employee, like a customer or a salesman, we can be held liable for failing to investigate and take action to end the harassment.  The bottom line is that the EEOC has taken the position that an employer may be held responsible for sexual harassment by non-employees if the employer knew about the harassment and failed to take immediate action. 

When I hear allegations of harassment, I think C.I.A.:

  Complaint         Investigate             Action

If an employee complains about harassment by a non-employee, you should immediately investigate the complaint.  Like the investigations you are familiar with in employee-on-employee harassment situations, you will need to interview the complaining employee and find out the who, what, when, where, and how the alleged harassment occurred.  Be sure to assure the employee that you will not take any negative actions against the employee for complaining (there will be no retaliation for making the complaint).  At a minimum, ask these questions:

i. Who harassed the employee?  (Because the alleged harasser is a non-employee, you will need to get as much information as possible.)
ii. What happened? (Ask for specific details.)
iii. Where and when did the harassment take place?
iv. Has the employee been harassed by this person before?
v. Are there any other witnesses?  If there are:
          a.  Interview the witnesses
          b.  Tell them that the investigation is to be kept confidential. 
          c.  Assure them that no negative job actions will be taken against them based on any information they provide. 
          d.  Ask them the who, what, when, where, and how.

Take thorough notes during your interviews and ask the employee to read them over and sign them to verify their accuracy. If you find that the complaint is valid, you will need to take action to end the harassment.  This might be problematic, because it is impossible to directly discipline a non-employee.  However, whatever corrective action you take should be focused on protecting the employee against future harassment by the non-employee. 

In this situation, my next step will be to write a letter to the Recruiter’s superior officer explaining the situation and asking for his or her help in preventing any further harassment from occurring.  I am hopeful that this will put an end to our neighbor’s unwanted visits to our stores. 

Mr. Rogers would be disappointed.  I guess this is really a case of “Don’t you be my neighbor.”