Harassment-free workplace: Potential harassers not limited to employees

by McAfee & Taft
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Employers are well aware of their obligation to act promptly to stop harassment or discriminatory behavior in the workplace when it is committed by employees. But this obligation can be more extensive. Employers are required to maintain a harassment-free workplace, and that can mean addressing inappropriate or harassing behavior directed toward employees by third parties, as two recent cases demonstrate.

Harassment by the rock guy

Lori Freeman worked for Dal-Tile Corporation as a customer service representative at the company’s stone yard in Raleigh, North Carolina. Freeman’s direct supervisor was Sara Wrenn. Timothy Koester was an independent sales representative for a kitchen and bath remodeling center. When conducting business with Dal-Tile on behalf of his employer, Koester regularly worked with Freeman.

While at the Dal-Tile stone yard, Koester routinely used sexually degrading epithets, frequently using the word “bitch.” He described in excruciating detail his sexual experiences and showed naked pictures of women he had taken on his phone. Koester was quick to use racially inappropriate language and racial slang on a daily basis. His comments included frequent use of the “n” word. Koester’s recurring habit of using sexually and racially degrading comments were confirmed by not only Freeman, but other Dal-Tile employees.

no-harassmentWhen Freeman complained to supervisor Wrenn about Koester’s behavior, Wrenn agreed Koester was a “pig,” but otherwise took no action on Freeman’s complaint. Next, Freeman reported Koester’s remarks to Dal-Tile human resources personnel. The HR department initially banned Koester from the facility; however, the company later lifted the ban, but asked Koester to cease communicating with Freeman.

Freeman was very upset and began a medical leave of absence to seek treatment for depression and anxiety. Shortly thereafter, Freeman resigned her job, telling Dal-Tile her constant worry about encountering Koester at work worsened her depression and anxiety. After her resignation, Freeman sued Dal-Tile for fostering a racially and sexually hostile work environment.

Dal-Tile argued it could not be liable for Koester’s conduct because he was not an employee of the company. The court rejected Dal-Tile’s argument, finding the employer could not avoid liability for third-party harassment by trying to take a “see no evil, hear no evil” strategy. Applying a negligence standard, the court decided that employers who knew or should have known of harassment by a non-employee and fail to take prompt remedial action to end the harassment may be liable for third-party harassment claims.

Grocery groping

Laura Morrow and six other female employees worked at the Oak Grove Fred Meyer grocery store located in Milwaukie, Oregon. Charles Janac was a regular customer at the store. In fact, Mr. Janac appeared at the store on a daily basis and sat on a bench near where Morrow and other employees clocked in and out from their work shifts.

Janac was nothing but trouble. He touched and groped employees’ breasts, knees and buttocks.  Janac tried to force a female employee to sit on his lap and made lewd remarks. Female employees complained to the Equal Employment Opportunity Commission and alleged that when they reported Janac’s conduct to management, they were told a customer could not be banned from the store unless security department personnel witnessed his misconduct.

The EEOC filed a lawsuit on behalf of seven female employees against Fred Meyer, accusing the employer of failing to respond effectively to Janac’s harassing conduct.  The EEOC’s lawsuit accused the grocery store of being responsible for a sexually hostile work environment. In April, Fred Meyer Stores settled with the EEOC, agreeing to pay $487,500, revise its anti-discrimination/harassment policy, and conduct annual Equal Employment Opportunity Training for managers and human resource employees in the Oak Grove store and the Portland, Oregon district office. Fred Meyer Stores also had to post notices in all Portland district stores announcing the sexual harassment claims and the settlement against the employer.

The moral of the story

Think of it this way. As an employer, you are responsible for maintaining a harassment-free workplace for all employees. Potential harassers are not limited to employees. As Dal-Tile and Fred Meyer Stores found out, sometimes harassment can come from a non-employee. When an employer knows or should have known of any harassment occurring in the workplace – even harassment perpetrated by non-employees – they have the obligation to take prompt and reasonable steps to put an end to that behavior. It is not a defense to say, “they don’t work for us.”

  • Freeman v Dal-Tile Corp., No. 13-1481 (4th Cir. 04/29/14)
  • EEOC v Fred Meyer Stores, Inc., CV-11-832-HA (D.C. Ore 04/29/14)

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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