Third-Party Harassers-The Customer is Not Always Right!

Most companies know, and have procedures, for how to deal with inter-office harassment. But companies whose business model depends heavily on client/customer, independent contractor, and vendor interactions must also be cautious that those third parties are not harassing its employees. Like workplace harassment claims, third-party harassment claims are dangerous issues that can lead to a decrease in productivity, employees feeling unsafe, or potentially even a legal claim.

Consider this example: an employee working at a supermarket often deals with a particularly troublesome customer. This customer always chooses their line, winks during their interactions, comments on the employees looks, asks for their phone number, and waits around the store until after the employee’s shift is over. The customer knows their schedule, has requested to be friends on social media, and makes sexual comments. The employee feels uncomfortable and, at times, unsafe. The employee brings this to the attention of their manager. The manager thinks that ignoring the customer as much as possible will make the problem go away and tells the employee that they should smile and ignore the person as much as they can. This type of a response could mean big trouble for the employer.

This type of situation is not unique to supermarkets, it could be personal care assistants in nursing homes, it could be a salesperson dealing with clients. Additionally, the harassment could be based on other characteristics such as race, religion, age, or disability. Third-party harassment comes in all shapes and sizes, and appropriate responses to harassment is essential to maintain a healthy workplace. Third-party harassment is prohibited by Title VII of the Civil Rights Act, the ADA, the ADEA, and various state and local laws.

What Qualifies as Third-Party Harassment:

Third-party harassment has the same standard as workplace harassment, but the harasser is from outside the workplace. The third-party’s harassment must be pervasive and severe enough to change the conditions of employment for the victim. In the example above, if the customer winked at the employee and asked for her phone number, but then never repeated that behavior or engaged in something similar, that likely would not rise to the level of actionable harassment. However, when the employee continues this behavior, and/or escalates it, that could rise to the level of actionable harassment. The above example could be enough to rise to actionable harassment.

When the Employer Becomes Liable for Third-Party Harassment:

When the employer knew, or should have known, about the harassment and fails to take the appropriate action. An employer knows when the victim employee or a coworker complains about the behavior to a manager or supervisor. The appropriate corrective action will depend on the circumstances, but if the third-party refuses to change their behavior, prohibiting that third-party from doing business with the employer may be the only remedy available. Additionally, an employer dismissing the employee’s concerns or penalizing the employee for raising the concerns can also result in liability.

Employers should be careful about taking action that results in changes for the employee. If the employer changes the employee’s position, department, hours, etc., that could be seen as adverse employment action and subject the employer to a retaliation claim as well as a harassment claim.

How to Respond When an Employee Complains of Harassment:

To start, when an employee complains to a manager of harassment, or a manager has witnessed or otherwise been made aware of harassment, the company is put on notice and needs to respond. As stated above, dismissing an employee’s concerns could open the employer up to liability.

Employers may worry that confronting the third-party will result in a loss of business or feel that the harasser is unlikely to return. However, this should not prevent an employer from a prompt investigation into the matter and addressing the issue appropriately. The customer is not always right, certainly when it means creating an environment that is uncomfortable for the company’s employees.

With one-time customers, an investigation is not always practical, but the employer should take any allegation of harassment seriously and act accordingly. In the case of the supermarket employee, if the customer was a one-time occurrence, the manager could let the employee take a paid break until the customer has left. If the employee is a consistent problem, an investigation may be more appropriate, and the remedy would be preventing that employee from entering the store in the future.

If the issue is with a client, vendor, or independent contractor, an investigation is likely more practical, and should be conducted promptly. If the investigation substantiates the harassment, an employer must then decide the appropriate remedy for the situation. With these types of third-parties, it is much easier to warn the party or even sever the ties with the party, which should end the harassment.

How You Can Avoid Third-Party Harassment Claims:

  • Clear policies that state the anti-harassment provisions also protect employees from harassment by third-parties, including customers, independent contractors, vendors, and clients.
  • Provide the third-parties with a copy of the anti-harassment policy and require compliance in order to do business.
  • Inform employees they should promptly report any issues of third-party harassment.
  • Promptly respond to complaints of harassment, which may include an investigation if practical.
  • Identify high-risk groups, such as personal care assistants, low-wage staff, housekeepers, etc. Then, provide additional measures to respond to any issues of harassment, like a well-defined procedure for responding to complaints, assigning two employees to work with a client, etc.,
  • Engage your employees in bystander training that will teach them how to intervene when they witness a coworker being harassed.
  • Managers and supervisors should have training on how to appropriately respond to third-party harassment claims.

Companies should treat third-party harassment claims like they do inter-office harassment claims. Taking these concerns seriously and handling them appropriately is essential to build a better workplace and reduce a company’s potential for liability.