Category: 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.”
The Cheesecake Factory, Inc. learned this the hard way when they were recently sued by the EEOC for failing to respond to complaints by male Cheesecake Factory workers that they were being harassed by other male co-workers. The complaint in this class action alleges that the male workers were continuously harassed since 2004 by other male employees. The EEOC contends that groups of male employees would sexually assault other male employees and some would grab the male workers crotch area and also go behind them and “grind” up against them as if simulating a sexual act. The male employees complained to management at the restaurant but management ignored the complaints and allegedly did nothing. The EEOC attorney for the plaintiffs stated that “[a]ll employees, both men and women, have a right to work in a harassment free workplace”.
The lesson for employers is clear. When employees complain about harassment the law requires the employer to take action to eliminate the harassment and ensure that the workplace is harassment free. The employer must commence an investigation and communicate the results of that investigation to the complainant and the accused. The employer must then take “prompt corrective action”. Such action can include disciplining the harassers, up to and including, termination. Depending on the severity of the harassment, prompt corrective action could simply involve a written disciplinary warning. It really depends on the facts and circumstances of that individual case. What is most important is that the employer take prompt action that successfully stops the harassment.
This is true whether the harassment is between members of the opposite sex or the same sex. In 1998, the US Supreme Court in the case of Oncale vs. Sundowner Offshore Services held that members of the same sex who harass each other are engaging in sexual harassment and that sexual harassment does not have to occur between members of the opposite sex. So employers should be careful to not ignore complaints of sexual harassment even if they occur between same-sex employees. Always take complaints of sexual harassment seriously and act immediately to eliminate any possible harassment in your workplace.
Submitted By: Melissa Fleischer, Esq.
HR Learning Center LLC
The California Fair Employment and Housing Commission’s regulations implementing AB 1825 (mandatory sexual harassment training) failed to gain approval from California’s Office of Administrative Law. The FEHC made the announcement here.
The OAL’s chief concern was that the regulations were not sufficiently “clear” in certain respects, particularly regarding who is qualified to prepare and conduct anti-harassment training under the statute. There were also some more technical flaws.
The FEHC plans to modify the regulations and publish them for a brief public comment period before re-submitting them to the OAL. The FEHC’s modifications may have a significant effect on existing programs, depending on whether the new standards “raise the bar” on who is qualified to prepare or conduct AB 1825 training.
Once the regulations are re-issued, employers should reevaluate whether their trainers and training programs meet the new standards.
There is an interesting article in USA Today (with a related blog post) about business executives—particularly on Wall Street—going to strip clubs. It seems that the NYSE and NASD are considering rules to curtail these trips as a result of recent bad press relating to sexual harassment in the financial services industry.
You would think that a number of multi-million dollar verdicts would be enough to generate independent action on behalf of these firms.
I wonder how Keith Hammonds would handle this situation?