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When Workplace Sexual Harassment Comes From the Outside

"Hey, good-lookin'."

"How about we take this meeting somewhere more private?"

"I'd like to get you alone, if you know what I mean."

Every manager and executive recognizes that statements like these between co-workers, when unwelcome, constitute harassment. But fewer leaders understand that these statements also constitute harassment when they come from third parties like customers or vendors -- and that the business may be held liable if employees are not protected from these harassers.

This article explores how third-party harassment is defined and options for addressing these "outside" harassment claims.

(Remember: While this guide provides a general overview, it is not a substitute for legal advice. For answers to specific legal questions, consult a lawyer who is licensed to practice in your area.)

What Is Third-Party Harassment?

The Equal Employment Opportunity Commission (EEOC) states that "it is unlawful to harass a person (an applicant or employee) because of that person's sex." If submitting to the unwelcome behavior is made a condition of employment or it unreasonably interferes with the person's ability to do their job, the harassment becomes illegal -- and employers can be held responsible.

Employers' responsibility to address sexual harassment doesn't end with its own staff. Employers may also face liability under federal law for harassment by third parties like customers, clients or vendors.

An employer may be held liable if the employee can demonstrate that:

  1. the employee attempted to tell the company about the problem;
  2. any supervisor in the company knew or should have known about the harassment; and
  3. the company failed to take prompt and effective action.

Because each circuit court handles third-party harassment differently, it's important to speak to a lawyer to determine whether additional conditions apply to a charge brought against your company.

A recent case on third-party harassment provides an instructive example. In EEOC v. Cromer Food Services, Inc., a Cromer employee was tasked with stocking hospital vending machines under a contract between Cromer and the hospital. Hospital staff began to tease the employee with accusations that he was homosexual.

When the employee asked the hospital staff to stop, they not only ignored him, they escalated the unwelcome comments and jokes. The Cromer employee reported the harassment to several of his direct supervisors and asked that his route be changed. After several months of doing nothing, Cromer supervisors changed his route -- to one that was both undesirable and inconvenient.

The U.S. Court of Appeals for the Fourth Circuit found that Cromer knew about the harassment and its route change offer was inadequate -- and that Cromer was liable.

Best Practices for Addressing Third-Party Harassment Claims

How can an organization avoid facing similar liability for "outside" harassment? The following tips provide a place to start:

  • Take complaints seriously. Employers are more likely to be found liable if they sit on a complaint or tell an employee to "deal with it." Instead, start discussing possible ways to address the problem immediately.
  • Take (and document) concrete action. Options may include speaking to the third party directly, speaking to the third party's employer, assigning an assistant or an alternate employee to the task or even threatening to end a business account if the behavior does not stop. Whatever steps you choose, document them and their results.
  • Communicate with the employee. When taking steps to address the problem, communicate regularly with the affected employee. Workers who feel included in a proactive process to fix the problem are less likely to feel it necessary to resort to a lawsuit in order to be heard.
  • Avoid steps that read as "adverse." For example, while reassigning the affected employee may seem simple, it may be unsatisfactory for the employee -- and it may cause whoever takes over in a position to be harassed as well. Often, opting for more direct actions is the best choice for everyone involved, even if they involve short-term conflict.

For more specific guidance, speak to an attorney. Human resources and recruiting professionals may also provide insight and recommendations to help your company help its people.