Does your company prohibit and address harassment of its employees by customers, vendors, or independent contractors?

March 18, 2011

Does your company prohibit and address harassment of its employees by customers, vendors, or independent contractors? If not, it should the Fourth Circuit ruled in a March 3, 2011 decision. In EEOC v. Cromer Food Services, Inc., Case No. 10-1476 (4th Cir., March 3, 2011) (Unpublished) the United States Court of Appeals for the Fourth Circuit agreed with the EEOC that an employer has a duty to take reasonable steps to prevent and respond to sexual harassment of one of its employees by non-employees when it "knows or should know" of the harassment. The employer is a food-stocking company that sells food and beverages in vending machines which it places on its clients’ premises.  The harassed employee, Mr. Howard, was responsible for servicing the vending machine at one of the company’s largest clients, a local hospital.  According to Mr. Howard, he suffered daily sexual harassment by some of the hospital’s employees.  He complained to his employer but his employer initially refused to take any action expecting Mr. Howard to just “let it go.”  Finally, after several complaints, the company switched Mr. Howard from the second to the first shift which, from Mr. Howard’s perspective, was an undesirable position.  Mr. Howard refused the transfer and was fired.

The Fourth Circuit agreed with the EEOC that the employer had a duty to prohibit, investigate, and take prompt remedial action in a reasonable effort to correct the problem after Howard reported it to them.  The Court found that, on the facts as alleged by Mr. Howard, a jury could find that the employer should be held liable for failing to take prompt remedial action to protect its employee from sexual harassment by third parties even though it had no actual control over the harassers.  Although the decision is unpublished and is not binding precedent, it is instructive because it demonstrates that the EEOC believes that employers have a duty to prevent and address harassment of employees by non-employee, third parties.

The 10th Circuit, which establishes precedent for Kansas employers subject to federal anti-discrimination laws, has reached a similar conclusion in the case of a waitress who was sexually assaulted and harassed by restaurant patrons.  See Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998).  Kansas employers should assume that the Tenth Circuit would likewise agree with the EEOC’s view of their obligation to protect employees from third parties.”

If you have questions about the issues in this article, need assistance updating your policies or procedures, or require legal counsel to defend you in an employment discrimination claim, please contact S. Eric Steinle.



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March 18, 2011
Does your company prohibit and address harassment of its employees by customers, vendors, or independent contractors?