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Ask the Hotline | A Customer Harasses an Employee

March 14, 2017
Q. Is it possible for a customer to sexually harass one of my employees? If yes, what can I do about it? 
A. Yes, a non-employee can harass one of your employees and the employer must take steps to stop it. 
According to the sexual harassment guidelines issued by the Massachusetts Commission Against Discrimination (MCAD) in the early 2000s, an employer may also be liable for the sexual harassment committed against its employees by certain non-employees, including customers, patients, clients, independent contractors or other acquaintances.  
The MCAD guidelines make it clear that liability will be found when the employer knew or should have known about the conduct and failed to take prompt, effective and reasonable remedial action. While remedial action will vary depending on the situation, employers who disregard this form of harassment do so at their peril. 
In the MCAD’s view, the primary difference between employer liability for harassment committed by co-workers and harassment committed by non-employees lies in the ability of the employer to control the conduct of the non-employees. Generally, the greater the employer's ability to control the non-employee's conduct, the more likely it will be found liable for that person's unlawful harassment. 
A recent federal case from Illinois highlights the risk an employer may face for failing to address harassment of an employee by a customer.  In a lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) against a major national retailer, a jury awarded the employee $250,000 because the employer failed to take reasonable steps to prevent a customer from sexually harassing her.
A female employee filed a complaint with the store management, claiming that a customer was harassing her while she was working. When the employee believed that the company failed to respond to the issue, she filed a charge with the EEOC, alleging that the employer had violated federal law by failing to appropriately address the customer’s harassment.
The EEOC investigation showed that the employee had repeatedly told her managers that a customer was stalking her. According to the EEOC, the actions included ominous staring, unwanted physical touching, unwanted requests for dates, and overly intrusive personal questions. Eventually, the employee contacted the police and got a protective order against the customer.
According to her complaint, the store violated the sex discrimination section of the Civil Rights Act by failing to respond. While the employee’s having to get a court order may have been significant in determining the amount of the award, employers need to recognize that waiting until the employee is afraid of a non-employee’s behavior is going to result in a decision against the employer. It reinforces the idea that the employer failed to ensure that all of its employees have a safe, harassment-free workplace.
This case serves as a reminder that the employer should follow up with a complaining employee to make sure things have improved. Anytime a complaint is filed, the employer needs to show that it is taking the complaint seriously by documenting its receipt, immediately opening an investigation and documenting its results.
The employer must also ensure that there are ongoing communications with the employee to urge her to bring any related or ongoing problems with the outside party to your retention immediately. 
While corrective action will vary on a case by case basis, employers need to recognize their duty to take these types of harassment complaints as seriously as a complaint involving two or more employees. 
If you have questions about this or any other HR related matter, please contact the AIM Employer Hotline at 800-470-6277. 
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