201707.270

Treat harassment by non-employees no differently than harassment by employees

Employment

From Meyers, Roman, Friedberg & Lewis

Consider the following lawsuit the EEOC filed against a California senior-care provider:

The civil rights agency found that Rashon Sturdivant, an experienced care provider, faced daily harassment, including racially offensive remarks about “brown sugar” and “black butts,” requests to perform sexual acts, and lewd comments about her body. The client also masturbated in front of her and groped her when she performed routine tasks like helping him sit up in bed or cleaning him. Although Sturdivant and other care providers informed R. MacArthur of his conduct, the EEOC charges that the employer failed to act on these complaints and also retaliated against Sturdivant by refusing to reassign her to another client.

This employer mistakenly assumed that the law does not cover employees harassed by non-employees. Nothing is further from the truth. In fact, an employer’s obligations to an employee harassed by a non-employee are exactly the same as if the alleged perpetrator was an employee—to take prompt remedial action to ensure that the harassment stops and does not re-occur. In other words, the employer must:
  1. Be prompt. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct and stop from happening again.
  2. Be thorough. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. The more egregious allegations, however, the more comprehensive of an investigation is called for.
  3. Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Companies place themselves in a much worse position if they are too lax instead of too cautious.
  4. Communicate. The complaining employee(s) and the accused should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
  5. Follow through. There is nothing illegal about trying remedial measures less severe than ending the relationship in all but the most egregious cases. A valued customer may be no less valued after asking an employee about her underwear, for example. If the conduct continues, however, the discipline must get progressively more harsh. If you tell an employee that termination is the next step, you must be prepared to follow-through.

Indeed, Ohio even has a specific regulation covering this scenario: Admin. Code 4112-5-05(J)(5):

An employer may also be responsible for the acts of nonemployees (e.g., customers) with respect to sexual harassment of employees in the work place, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such nonemployees.

I’ll give EEOC San Francisco District Director William R. Tamayo the final word on this issue:

The customer is not always right. The law requires employers to ensure that workers are protected from sexual harassment, even when that workplace is non-traditional, like a client’s home, and even when the alleged harasser is a customer or client.