10 Tips for Preventing Third-Party Harassment and Discrimination

Workplace harassment is a serious issue, whether it involves unwanted sexual advances or derogatory remarks about a person's race or skin color. Employment laws hold employers responsible for ensuring that the workplace is free of harassment — including that of an outsider such as a client, customer, vendor or independent contractor. Consequently, organizations that ignore harassment simply because it was not committed by an employee may still face third-party harassment lawsuits.

The Fourth Circuit Court of Appeals recently joined the Second, Eighth, Ninth, Tenth and Eleventh Circuits in applying a negligence standard to third-party harassment claims under Title VII of the Civil Rights Act. As a result, an employer may be liable for the actions of non-employees who create a hostile work environment if (a) the employer knew or should have known of the harassment, and (b) failed to take prompt remedial action to end the harassment.

Although employers have less control over the conduct of non-employees, the following practices can help minimize the risk of third-party harassment claims:

  1. Avoid a "see no evil, hear no evil" approach to complaints. Implement procedures that encourage employees to report harassment by a customer, independent contractor or employee of a vendor or supplier.
  2. Review policies. Include specific procedures for investigating complaints of third-party misconduct in the organization’s anti-harassment policies.
  3. Convey the policy to outsiders. Make visitors, clients, suppliers and customers who come into contact with workers or job applicants aware of the organization's harassment policy. Post signs in public areas, and require third parties to adhere to the harassment policy as a term of the contract.
  4. Educate and support employees. Educate employees on the different types of harassment that can occur and the policies and procedures in place to protect employees. Encourage staff to report any incidents involving third-party harassment or discrimination.
  5. Train supervisory staff.When training managers on how to investigate and address harassment claims, include information on how they can protect employees from third-party misconduct in the workplace.
  6. Reinforce policies and procedures for the most vulnerable employees. Speak to front-line personnel and others most at risk of harassment and discrimination — such as reception staff — to ensure they are aware of the issues and understand the procedures for making a complaint if misconduct occurs.
  7. Investigate complaints promptly. Investigate every complaint immediately; employees should not have to make more than one complaint to receive the attention of management.
  8. Address the behavior. When misconduct occurs, take prompt action to prevent a recurrence. Employers should advise the person who has harassed their employee that their behavior is unacceptable.  In some cases, it may be necessary and appropriate to prevent the person from visiting the workplace to protect staff.
  9. Be careful of illegal retaliation. Employers should protect employees who complain or report misconduct from retaliation. For example, demoting a victim of harassment from overseeing a third-party relationship so that he or she does not have to work with the offending party may result in a claim of retaliation against the employer.
  10. Take care with new acquisitions. Communicate all applicable anti-harassment and anti-discrimination policies and procedures to newly acquired entities to help ensure an incident-free transition.

Preventing improper conduct is essential for minimizing workplace discrimination and harassment liability. Employers can minimize costly investigations, litigation and negative publicity by implementing and enforcing a proactive compliance training program and policy.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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