Employers Must Be Vigilant in Responding to Alleged Harassment By Non-Employees
A Workplace Law Client Alert
When addressing workplace harassment, employers typically concentrate on protecting employees from harassment by co-workers or supervisors. A recent appellate decision from the Fourth Circuit Court of Appeals may make employers liable for harassment by non-employees.
In Freeman v Dal-Tile Corporation, a female employee complained of racial and sexual harassment by a vendor salesperson. Most of the alleged harassment was verbal and there was no touching. The employee sued her employer because she believed her complaints were ignored.
Seeking to avoid liability, the employer argued no responsibility for an offender who was not an employee of the employer. Rejecting this defense, the appellate court ruled “‘an employer is liable under Title VII where third parties create a hostile work environment if the employer knew or should have known of the harassment’ and failed ‘to take prompt remedial action and reasonably calculate the harassment.’” An employer cannot avoid a harassment claim merely because the alleged offending individual was not an employee. The case was returned to the lower court to schedule a trial in the case.
The Freeman decision is a reminder to employers that they must be vigilant in responding to workplace harassment allegations whether or not caused by employees. Immediate response is required even when the alleged harasser is not an employee. Employers may be forced to take action even if the alleged harasser is a buyer for a big customer! If you have any questions, call any member of Bodman’s Workplace Group for assistance.
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