Employees Are Protected Against Sexual Harassment From Customers
A common misconception in the area of sexual harassment law is that an employer can only be held liable for hostile work environment sexual harassment when the harassment is committed by an employee. However, employers have a duty to prevent and correct sexual harassment in the workplace whether the harasser is an employee or a third-party. Thus, employers can be held liable for the sexual harassment of its employees by third-parties, including customers, clients, contractors, and consultants. As explained by the U.S. Ninth Circuit Court of Appeals in Galdamez v. Potter, 415 F.3d 1015 (9th Cir. 2005), an employer may be held liable for third-party sexual harassment of its employees “where it ratifies or condones the conduct by failing to investigate and remedy it after learning of it.” Employer liability for third-party sexual harassment of its employees, as the Galdamez court observed, “is grounded in negligence and ratification.” In Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), the U.S. Supreme Court determined that “an employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it.”
The legal standard for an employer’s remedial obligation when the harasser is a third-party essentially mirrors the legal standard for an employer’s remedial obligation when the harasser is an employee. Once an employer knows or should know of harassment by a third-party or an employee, the employer is required to take prompt and effective remedial action to stop the harassment and prevent the harassment from recurring. If the employer fails to take remedial action or the remedial action taken is ineffectual, the employer is liable for the hostile work environment sexual harassment. In other words, the employer is liable because its negligence allowed for the creation of a hostile work environment. Under such circumstances, as explained by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the employer “can be deemed to have adopt[ed] the offending conduct and its results, quite as if they had been authorized affirmatively as the employer’s policy.”
A recent case filed by the U.S. Equal Employment Opportunity Commission (EEOC), EEOC v. Love’s Travel Stops & Country Stores, Inc., in the U.S. District Court for the District of Arizona illustrates that employers have the responsibility to take corrective action in response to sexual harassment of its employees by customers. In that case, the EEOC brought a claim for hostile work environment sexual harassment under Title VII of the Civil Rights Act of 1964 (Title VII) on behalf of two female employees of Love’s Travel Stops and County Stores, Inc. (Love’s). The two employees worked as cashiers at Love’s truck stop in Buckeye, Arizona.
The EEOC alleged that the cashiers were subjected to on-going sexually harassing behavior from customers of Love’s, including sexual remarks, obscene comments, demands for personal information, and sexual propositions. The EEOC asserted that, although the cashiers repeatedly complained to management about the customers’ conduct, Love’s took no corrective action to stop the sexually harassing behavior. Instead of taking remedial action, management ignored and ridiculed the cashiers’ complaints. On one occasion, according to the EEOC, a manager responded to a cashier’s complaint about the sexual behavior by telling her to “to get used to it.” On other occasions, the EEOC claimed, managers told the same cashier “this is a truck stop” and she had to “deal with it.” The EEOC maintained that by failing to take prompt and effective remedial action to stop the harassment despite the cashiers’ complaints, Love’s was liable for the hostile work environment inflicted on the cashiers by Love’s customers.
In a Consent Decree entered into by the parties, Love’s agreed to pay the cashiers $70,000 to resolve the case. As part of the resolution, the EEOC also compelled Love’s to take action designed to protect employees from sexually harassing behavior in the workplace. Love’s was required to provide training to all employees at the Buckeye, Arizona facility on sexual harassment. Love’s was further required to create and implement a written policy concerning sexual harassment in conformity with the requirements of Title VII. The EEOC also obligated Love’s to take action to protect the cashiers from retaliation, including expunging from their personnel files any references to their participation in the lawsuit and any derogatory comments about their complaints of sexual harassment, providing them with a neutral written employment reference, and a letter of regret signed by Love’s Director of Risk Management.
We have extensive experience representing employees who have been the victim of sexual harassment from third-parties and other types of sexual harassment in the workplace. If you have been the victim of sexual harassment or have questions regarding sexual harassment in the workplace, please contact our office for a free consultation.
