Employers Can be Liable for Harassment, Discrimination from Non-Employees

Non-Employee Discrimination

Most employers understand that they have a responsibility to protect workers against harassment and discrimination from other employees. What many may not realize is that this also extends to harassing or discriminatory behavior from non-employees such as customers, clients, vendors, tradespeople, and patients. If an employer fails to do this, it can be held liable and face possible claims before the Equal Opportunity Employment Commission (EEOC) or civil litigation.

There are many examples of workers filing lawsuits against employers who failed to protect them from harassment and discrimination, as well as court precedent and actions involving the EEOC.

One notable case is the EEOC’s suit against Costco involving a part-time employee who worked on the store floor who received inappropriate attention from a customer. He repeatedly asked her to go out with him, touched her, and tried to hug her. This went on for a year. The employee reported the conduct to her supervisor and others. Little allegedly was done until the employee accused the customer of illegally videotaping her with his phone and reported him to Costco and the police. The store claims it then offered her a position at the registers so she would not have to have contact with the customer, and he was banned from the store. Unfortunately, no record exists of this accommodation. The EEOC filed suit against Costco for permitting a hostile work environment. In December 2015, the Northern District of Illinois held that the case could go forward. It is currently awaiting trial.

Last April, the 7th Circuit weighed in on the issue in Wells v. Winnebago County, Illinois.  This case was brought by a woman who worked in the county’s courthouse.  She suffered alleged verbal harassment from the public, and was even spat on once. The employer allegedly did not take steps to prevent the harassment, and she eventually left her job over it. The former employee then sued the county. Ultimately, she lost both at trial and on appeal to the 7th Circuit because her claims did not stand up to scrutiny. However, the 7th Circuit did reiterate that employers can be held liable for harassment by non-employees.

Closer to home, a Michigan hospital faces a lawsuit over alleged racial discrimination by a patient against an African-American respiratory therapist. When the patient was admitted to the ER he said he did not want any “black people” providing his care. This was noted in his chart. He was admitted and put under the care of the plaintiff. When she went to his room to treat him he asked her to leave, referring to what was noted in his chart. After conferring with her supervisors, she went back a second time, and he ordered her out again. The patient was later transferred to a ward on which the plaintiff did not work. She sued the hospital alleging it allowed racial discrimination from the patient. So far, the court has sided with the respiratory patient and allowed the case to proceed to trial.

All three of these cases demonstrate that employers can be held liable for the harassing or discriminatory actions of non-employees against workers. Luckily, the same steps that companies are likely already taking can help mitigate risk in this area. This includes:

  • Having policies in place that specifically say harassment or discrimination of any type will not be tolerated, no matter the source.
  • Ensuring all employees are familiar with company policies.
  • If appropriate, posting signage that expressly indicates harassment and discrimination by non-employees against a company’s workers will not be tolerated.
  • Providing a straightforward, clear process for employees to report discrimination or harassment of any type, no matter the source.
  • Investigating and addressing any complaints quickly.
  • Thoroughly documenting all claims, the actions taken, and accommodations made.

Both the courts and the EEOC have made it clear that companies have a responsibility to protect workers from discrimination and harassment by non-employees. Good employment practices, however, can go a long way to minimizing liability. It is incumbent on employers to ensure that they are following best practices.

Posted in Employment Law.