In the world of human resources, much has been written and said about an employer's liability for sexual harassment by its own employees. However, you can also be liable when a non-employee harasses one of your employees. Both the courts and the Equal Employment Opportunity Commission (EEOC) have found that an employer may be held liable for sexual harassment of its employees by someone outside of the organization, such as a customer or vendor.
Unfortunately, there is little guidance as to the extent of your duty in this area. Clearly, you may have a particularly difficult time addressing the problem if you depend on the harasser's organization for a large part of your business. Still, you have an obligation to protect your employees by investigating the complaint and by attempting to resolve the situation satisfactorily with both the employee and the alleged harasser.
According to the EEOC Guidelines referring to a discrimination complaint based on sex, an employer may be responsible for sexual harassment by customers or vendors, if two conditions are satisfied.
- You must either have actual knowledge of the harassment or have reasonable knowledge about the problem; and
- You must have failed to take immediate and appropriate corrective action.
Dealing with harassing customers can be difficult, especially when you feel as if you must choose between your employee and the source of your business income. However, as an employer you have an obligation to protect your employees from harassment, even if it is not convenient or good for business.
Consequently, to address cases of sexual harassment by customers, you should treat the problem as you would any other allegation of workplace harassment. In other words, you should investigate the claims and, if you find harassment, make every attempt to stop it.
In particular, you should focus on improving the portion of the situation over which you have control; namely, the degree of contact that the employee has with the outsider. However, be sure to remember that by taking the employee out of contact with the alleged harasser the act of doing so may be considered discriminatory if it reduces the employee's pay or results in less favorable working conditions. Therefore, you should discuss possible resolutions with the employee to determine an acceptable alternative before instituting any changes to the terms and conditions of employment.