Under Title VII of the Civil Rights Act of 1964, along with other state and federal anti-discrimination laws, employers are required to take reasonable measures to prevent or address a hostile work environment. In other words, if someone is harassing your employee, sexually or otherwise, you owe that employee a duty to step in and resolve the situation.
According to the EEOC, this is true even when the person doing the harassment is a client, a customer or another non-employee. That’s right: even when the harasser is not your employee, you still must take reasonable steps to address the issue.
That said, it is somewhat rare for harassment by non-employees to rise to the level of a hostile work environment. This is simply because harassment must generally be severe and pervasive in order to create a hostile work environment, and non-employees may not have enough time with the employee to create a work environment that is “intimidating, hostile or offensive to reasonable people.”
It can happen, however. Recently, the Ninth Circuit Court of Appeals reversed a trial court’s dismissal of such a case, ruling that the employer may have failed in its duty to protect its employee from severe, pervasive harassment by a customer.
The court did not rule that the employer actually failed to protect the employee. It ruled that a reasonable jury could conclude that the employer failed in that duty. The appeals court sent the case back to the trial court for a full hearing.
Customer allegedly asked for dates, sent flowers, stalked employee
The case involved a woman who worked at a bank in Washington. One day, she opened a bank account for a customer. He began leaving notes asking her for a date. She told her supervisor, who advised her to turn the customer down.
The customer did not back down but continued coming to the branch in an effort to get a date with the plaintiff. He sent love notes and flowers, stalked and stared at the plaintiff. The bank essentially took no action until, after repeated complaints by the plaintiff, they transferred her to another branch with fewer hours. The plaintiff ultimately quit her job and sued the bank.
The Ninth Circuit held that a reasonable jury could conclude that the customer’s actions were severe and pervasive enough that they had created a hostile work environment. Further, a reasonable jury could conclude that the bank had not taken sufficient measures to resolve the problem.
The case is now back before a federal district court. If you know about harassment by a customer, have you taken appropriate action? Talk to your employment law attorney about what is required.