The #Metoo movement has shed substantial light upon issues surrounding workplace sexual harassment, especially in the context of superiors harassing their subordinates. But what happens when employees are harassed at work by someone who is not a coworker or not even an employee? Many are surprised to learn that employers may be held liable for third-party sexual harassment.

What is Third-Party Sexual Harassment?

According to the Equal Employment Opportunity Commission (frequently referred to as the “EEOC”), sexual harassment includes unwelcomed sexual advances, requests for sexual favors, verbal or physical harassment of a sexual nature, and remarks about a person’s sex. Importantly, remarks about a person’s sex need not necessarily be sexual in nature to constitute sexual harassment.

Third-party sexual harassment occurs when someone outside of the employer’s organization harasses an employee in or outside the workplace. Such third parties may include customers, venders, delivery persons, consultants, or anyone that the employer has a business relationship with.

What Should Employees Subjected to Third-Party Sexual Harassment Do?

1. If the employee feels safe and comfortable doing so, tell the harasser to stop.
2. If the employee is not comfortable confronting the harasser or the harasser has refused to stop even when confronted, verify whether your employer has an anti-harassment policy that explains how to report harassment. If no such policies exist, reporting harassment to a supervisor or a HR representative is generally sufficient under federal and state law. It is very important that the employee reports the harassment to their employer before taking other steps.
3. If the employer does not take prompt action to investigate and stop the harassment, consult with an experienced employment attorney. An attorney can assist can discuss your options, which may include filing a discrimination charge with the EEOC.

What Should Employers Do to Avoid Liability for Third-Party Sexual Harassment?

1. Consult with an employment law attorney to draft a clear anti-harassment policy that explains the procedures for employees to report third-party sexual harassment.
2. Train any managers who are authorized to accept a compliant on behalf of the employer what their obligations are including reporting the incident to an HR representative.
3. Investigate all employee complaints and take swift action against third-party offenders.
4. Do not take any retaliatory action against employee who reported the harassment. For example, removing an employee from a lucrative account to protect him/her from the harasser may be considered retaliatory.
5. Check in with the employee frequently to ensure that he/she is satisfied and is no longer being harassed.

Although employer obligations under Title VII of the Civil Rights Act of 1964 only apply to employers with fifteen or more employees, the Arizona Civil Rights Act applies to employers that have at least one employee, at least with respect to sexual harassment claims. As a result, all Arizona employers must have an anti-harassment policy and can be liable for not promptly addressing complaints of sexual harassment.