Employment Law Update - Danger Ahead: Employer Liability For Third-Party Harassment

by Nexsen Pruet, PLLC
Contact

On April 29, 2014, the Fourth Circuit Court of Appeals held that employers can be liable for third-party harassment under a negligence standard.  In doing so, the court joined other circuits in establishing that employers can be liable under Title VII for third parties that create a hostile work environment, provided the employer knew or should have known of the harassment and failed to take prompt remedial action to end it.

The Case

In Freeman v. Dal-Tile Corporation, the plaintiff, Lori Freeman, had been employed by Dal-Tile in various roles, lastly as a customer service representative.  Freeman, a black female, complained that she was subject to numerous instances of harassment and discrimination by Timothy Koester, an independent representative for a vendor of Dal-Tile.

Freeman alleged that Koester often made jokes and inappropriate comments regarding sexual and racial topics.  She claimed that the harassment had been ongoing for three years and that she had complained to Sara Wrenn, her supervisor, multiple times with little response.  Wrenn admitted she was aware of the ongoing inappropriate behavior displayed by Koester, even testifying that Koester was a "pig."  However, Dal-Tile did not take action until Freeman went directly to human resources after Wrenn ignored her complaint regarding an incident in which Koester called her a particularly offensive term.

Freeman was initially promised by a human resources manager that Koester would be permanently banned from entering the facility.  Instead, however, Dal-Tile lifted the ban and prohibited Koester from any direct communication with Freeman, believing this was an adequate remedy for the situation.  Freeman, however, was so distressed with the thought of any potential interaction with Koester that she took a medical leave of absence from Dal-Tile, citing anxiety and depression.  Shortly after returning from leave, Freeman resigned out of concern she would still encounter Koester at work.

The trial court granted Dal-Tile's motion for summary judgment, finding that Freeman could not establish a claim for hostile work environment based on race or gender.  However, the Fourt Circuit reversed that decision, holding that a reasonable jury could conclude that Dal-Tile failed to take prompt remedial action to end the harassment despite its communication ban.  In particular, the Fourt Circuit noted that the communication ban might have been an adequate response if implemented earlier; however, the ban was not issued until Freeman had been subject to years of inappropriate comments and behavior by Koester.  The Fourth Circuit remanded the case to determine whether Freeman was subject to a racial and sexual hostile work environment.

Considerations for Employers

In light of the Fourt Circuit's adoption of a negligence standard for liability for third-party harassment under Title VII, employers may do the following:

  • Review discrimination and harassment policies to make sure they cover harassment by third parties, like vendors, customers, and business partners, and not just by other employees.
  • Provide employees with multiple avenues to report harassment.
  • Be aware of interactions between third parties and employees, and alert vendors to inappropriate remarks or actions by their employees.

Although Freeman's success in the lawsuit is still uncertain, the Fourth Circuit has opened the door to imposing liability on employers for third-party harassment.  Employers should review the above-mentioned considerations and look at other preventive measures to help reduce the risk of litigation and liability.

 

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.

© Nexsen Pruet, PLLC | Attorney Advertising

Written by:

Nexsen Pruet, PLLC
Contact
more
less

Nexsen Pruet, PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.