CFR 29 PART 1604: GUIDELINES ON DISCRIMINATION BECAUSE OF SEX § 1604.11 Sexual harassment
(e) An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action.

Sexual harassment claims filed with the Equal Employment Opportunity Commission (EEOC) may have experienced a slight decline over the last three years, but sexual harassment still makes up approximately one-third of the 21,000 total harassment claims filed each year. The total sex-based discrimination charges filed with the EEOC (which includes sexual harassment) actually reached a record high in 2012 of more than 30,000 claims. Harassment and discrimination are not issues employers can afford to ignore, with more than $138 million in damages awarded in 2012 by the EEOC for just the sex-based discrimination claims (about a third of the total money awarded for all discrimination claims in 2012). Add to that millions more in monetary damages awarded in civil suits each year.

Every manager should know their organization’s anti-harassment policy inside and out and should have the procedure for reporting an incident committed to memory. Thanks to your diligent efforts to train and educate yourself, your supervisors and your staff at all levels, you know your team knows the policy — you gave it to them. They know what kind of behavior is appropriate and not appropriate — you’ve discussed it. You know that if something inappropriate does happen, you have the power to fix it (investigation, corrective action, termination, etc.) — it’s your shop.

But what if the person doing the harassing is not someone who has read your policy, received your training or is within the organization’s power to discipline? When the person harassing your employee is a customer or vendor, taking action may seem like it’s outside your purview, but the liability for that harassment isn’t — you have a responsibility to protect your employees from unlawful harassment.

Imagine this: It’s summertime and your seasonal staff are ready to do their jobs. You’ve trained them on all of your organizational policies (including your anti-harassment policy), and you are confident that your staff will behave in an appropriate and compliant way.

But wait. After a few weeks on the job, your employee “Kim” comes to you and complains that, while on duty at the lifeguard stand, she has been habitually harassed by the vendor who refills the snack and soda machines three times a week. From comments on her bathing suit to jokes about drowning so she’ll give him mouth-to-mouth to directly asking her to meet him after work, “Brad” is making her very uncomfortable, and she is beginning to dread work on the days she knows he’s scheduled to be there. She pleads to you, “Can’t you do something to stop him?” 

The answer is yes. You can and you must before it becomes a hostile work environment. It’s not going to be clear-cut, but let’s be honest, no harassment investigation is clear-cut. The upside is that, since it’s not your employee who is being accused of harassment, you are not the one who has to actually conduct the investigation. Your responsibility is to notify the appropriate senior-level party at the accused harasser’s employer and follow up until the problem is resolved.

“Follow up” means that you communicate to Kim that you have notified the appropriate party at the other organization and that you keep in regular contact with the other organization to ensure that an appropriate and timely investigation is being conducted and to learn what the outcome of that investigation has been.  

“Resolved” can mean different things. You don’t know if this is an isolated incident or if this is a pattern, so the appropriate corrective action is something his company needs to determine, not yours. You need to determine that their action produced the desired effect: a harassment-free environment for your employees.

After you’ve determined that Brad’s company has completed its investigation and taken action (however they see fit), then Kim should receive a follow-up for closure. This final follow-up, however, should not come from you, but directly from Brad’s company to Kim. Avoid at all costs being the deliverer of that message. Make sure Kim understands that you had no role in the investigation or the outcome but that if any additional incidents occur, she should report them to you promptly.

Next (or better yet, first), update all of your vendor contracts to include language that makes clear your expectations for a harassment-free environment and their responsibility to comply. Don’t just accept their contract at face value — negotiate the language! Without specific language that the vendor company is responsible for ensuring their employees conform to your rules and policies about harassment, Brad’s actions might be covered in the contract’s indemnification clause and your recourse will be limited.

A quick note on the “reasonable person” standard. What one person finds offensive, another may not. Be cautious not to put yourself in the role of judge and jury as to whether comments or behaviors are truly harassment. According to a case study cited in the Pepperdine Law Review, “The court reasoned that the reasonable person standard caters to a male bias, thus overlooking the experiences of women. Under a reasonable person standard, which is said to be dominated by how males view various acts with a sexual content, men could perceive certain acts as relatively harmless. Women, however, could view the same situation as offensive.” So the court ruled that “reasonable” should be determined by the victim’s peers (in this case, women) and not the offender’s peers (statistically, men). Also important to note, “one act may be sufficient if it is particularly severe, while less objectionable incidents may be sufficient if they occur frequently.” The court also asserted that an act or behavior can be considered harassment even if that was not the intention. “Even ‘well-intentioned compliments’ are actionable as long as ‘a reasonable victim of the same sex as the plaintiff would consider the comments sufficiently severe or pervasive to alter a condition of employment and create an abusive working environment.’ The court noted that Title VII focuses on remedying the effects of sexual harassment rather than the motivation behind it. Moreover, the court stated that if intent became a defense, it would trivialize the effects of sexual harassment on a ‘reasonable’ woman.”

Bottom line, err on the side of caution. Don’t draw conclusions; respond to situations. This would also include your patrons and customers. The solution here is much easier — just ask them to leave — but the liability is just as high. You as the employer have an obligation to respond quickly and appropriately to remedy the situation in a way that maintains a harassment-free environment for all your employees.




Lauren Yost is NRPA’s Vice President of Operations.